Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 73
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 74
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Warning (512): Unable to emit headers. Headers sent in file=/home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php line=853 [CORE/src/Http/ResponseEmitter.php, line 48]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 148]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 181]
Notice (8): Undefined variable: urlPrefix [APP/Template/Layout/printlayout.ctp, line 8]latest-news-updates/court-vs-government-4677607.html"/> LATEST NEWS UPDATES | Court vs Government | Im4change.org
Resource centre on India's rural distress
 
 

Court vs Government
-Economic and Political Weekly

Independence of the judiciary is not the issue in the current stand-off; it is control over appointments.

The decision of the Supreme Court striking down the Constitution 99th Amendment and the National Judicial Appointments Commission (NJAC) marks a high confrontation level between the executive and the judiciary. One of the first actions of the Narendra Modi government was to bring into being the NJAC to make appointments to the higher judiciary. The NJAC consisted of the Chief Justice of India (CJI), his two senior-most colleagues, the union law minister and two eminent persons. The last were to be chosen by the Prime Minister, the CJI and the leader of the opposition. This was to replace the collegium system by which the judiciary had control over these appointments. Five judges have negated these enactments of a unanimous Parliament and 20 assemblies, and have sought to revert to the collegium system. It is unlikely that the issue will now be treated as settled.

The government has long nursed a grievance about being elbowed out of the scheme for appointment of judges to the Supreme Court and high courts. It has a point. The Constitution envisaged that the CJI was to be consulted by the President in the matter of appointment of judges to the Supreme Court and high courts. In 1993, the Supreme Court read consultation as concurrence, formulated a collegium of its senior-most judges and gave it the ultimate say. The process involved consultation with the government, but did not require its concurrence. The shoe was on the other foot.

The collegium has been at the receiving end of criticism from many quarters, and for good reasons. It operated without transparency and in virtual secrecy. Key stakeholders like the Bar were excluded from the process, and remained unaware of the names under consideration, and the reasons for selection and rejection. Undesirable appointments and unfathomable exclusions made it even more difficult to support this institution, which while crafted out of good intention to protect judicial independence did not have much of constitutional parentage. Over the years support for this body dwindled; even Justice J S Verma, the key author of the 1993 decision, is reported to have regretted his decision. It is remarkable that while a section of the Bar challenged the NJAC Act, significant bar associations supported it; even some eminent lawyers leading the attack on the NJAC made it clear that they were opposed to the collegium.

The Court based its decision on the premise that judicial independence would be threatened if the NJAC were to be allowed, and that this threat flowed out of the composition of the body. The law minister represented the largest litigant in the country—the government—and therefore could not be a party to selecting judges. The eminent persons were undefined and could be unconnected with the law. Any two of these could block an appointment desired by the CJI and the two senior-most judges of the Supreme Court.

This decision presents many problems. The Constitution itself does not give this virtual monopoly to the Court. World over, judges do not control judicial appointments; the legislature, executive and even members of the public are involved in the decision-making process. The functional independence of the judiciary is protected by the Constitution; judges can decide cases without fear of consequence. Any two judges of the NJAC could have prevented an unsuitable appointment. Judicial independence was thus not threatened by this body.

Judicial control was taken away, and that seems to be where the issue is. Clearly, the Court felt that the business of appointing judges is best left to judges. Critics of the Court will say that the judges do not want to cede a power they have held for more than 20 years, and there is no doubt that influence and patronage flow from exercising the choice of filling the senior judicial ranks. At the same time, it is apparent that the judiciary is apprehensive of dealing with the other members of the NJAC at the level of equals, and, worse, who may block well-considered proposals thus necessitating compromise. The judges may have good reason for these apprehensions. The record of this government in selecting and removing office holders in cultural and educational institutions shows that considerations of suitability for office is not predominant, closeness to the party is. From the times of Indira Gandhi, the Emergency, and Justice A N Ray, the judiciary has been near paranoid about judges committed to the ruling party and those looking forward to such appointments.

Major constitutional cases have seen benches of nine, 11 and even 13 judges. This one had only five. The issues here went to the root of the judicial system, the Court faced a challenge to its power, and in its decision it has taken on the entire political spectrum. This case should have been heard by a much larger judge strength; the numbers are significant in measuring the authority of the decision. And while one would have wished for a larger number of judges, one also wishes for fewer judgments emanating from the bench; each of the five members has delivered his judgment. The need for a separate judgment expressing dissent is obvious, but a plethora of affirmative voices makes it difficult to connect discussion to rationale to verdict. The majority speaking through one judgment is preferable to individual expressions, however lucid and learned they be.