(Shashwat Baranwal is a second year student of West Bengal National University of Judicial Sciences)
Featured Art: ‘West Chester Court House’ by Horace Pippin

INTRODUCTION

In a tussle between the Judiciary and the Executive, the Executive will largely lose, maybe because India has a ‘Supreme Court (SC)’, but it does not have a ‘Supreme-Executive’. The truth is, the Judiciary has a superpower called the Basic Structure, which can encapsulate anything under the sun. The country has a watchdog for the Legislature and the Executive, but who will keep a check on the Judiciary? One cannot deny that an independent Judiciary is a sine qua non to run a democracy. However, the contours of judicial independence are obscure.There have been various instances where the SC has overstepped, and judicial appointments is one of those. The Constitution provides for judicial appointments being a participatory process between the Executive and the Judiciary. Nevertheless, the SC in the name of ‘judicial independence’ has ruled out the Executive. This article will trace the series of events that turned the tables, critique the debate surrounding the judicial appointments, and arrive to a conclusion.

THE JOURNEY FROM ‘CONSULTATION’ TO ‘EXCLUSIVITY’

Prior to the enactment of the Constitution, a conference took place in Delhi to examine the draft Constitution and its repercussions on the Judiciary. The judges expressed their discomfort as ‘concurrence’ with the CJI was not made quintessential for judicial appointments. However, Dr. B.R. Ambedkar refuted this contention of the judges by asserting that the Constituent Assembly does not want a monopolistic body for judicial appointments, hence it introduced‘consultation’ instead of ‘concurrence’.[i]He added as the Executive was given primacy, ‘consultation’ will help the Judiciary to keep the Executive in check. Furthermore, ‘consultation’ was supposed to be constructive and not tokenistic.

After the Constitution came into force, it was believed that the appointments happened harmoniously as envisioned by the Constituent Assembly.Little did people know about the ‘fictional concurrence of the Chief Justice (CJ)’.[ii]There were instances when the CJI and the Executive were at standoffs, and the CJI had to defer. The Executive whimsically appointed the judges and considered facets like religion, caste, region, to be more important as compared to merit. This fact was disinterred in 1958, when the Law Commission categorically pointed out that appointments were made under political influence. Besides, it recommended replacing ‘consultation’ with ‘concurrence’ of the CJI.

The recommendations of the Law Commission were put aside, and appointments continued with the same demeanor. Things went haywire post-1971, when a series of judgements (Golaknath case, Bank Nationalization case, and Privy Purses case) were decided against the Indira Gandhi government. To settle scores with the SC, the government began appointing judges who would favor the government, and the primary criteria for appointments became political ideology.The Executive was baffled after the Keshavnanda Bharti judgement, and for the first time in history, the supersession of three senior-most judges (Justice Shelat, Justice Hegde, and Justice Grover) took place due to political vengeance. Supersession happened for the second time when Justice Khanna was superseded by Justice Beg after the retirement of Justice Ray, as a punishment for ruling against the government in two significant cases (Keshavnanda Bharti case and ADM Jabalpur case).

Political interference in transfers and appointments had manifolded, and it was felt that the independence of the Judiciary is at stake. One such transfer was challenged, in which the SC got the opportunity to scrutinize the appointments provisions as well. The SC opted for a positivist approach and held that the primacy should lie with the Executive. Additionally, it emphasized that ‘consultation’ with the CJI regarding appointments is vital. A similar stance was taken by the SC in the first judges’ case. This judgments received a lot of backlashes as it jeopardized the independence of the Judiciary. However, the SC’s viewpoint reversed in the second judges’ case and it ruled that in cases of judicial appointments the Judiciary should have primacy.The apex court added that the Judiciary was to exercise its power through a collegium comprising of the CJI and two senior-most judges of the SC. Moreover, merit and seniority were to be considered while appointing judges to the SC. The SC’s stance was clarified further in the third judges’ case, where it increased the strength of the collegium from three to five, and asserted the nuances of the functioning of the collegium.

The SC gave itself unfettered powers through the third judges case. The Executive tried to balance the process of appointments by giving itself some say. The latest proposal being the National Judicial Appoints Commission (NJAC) which was brought through the Ninety-ninth Constitutional Amendment Act 2014. However, the SC declared the NJAC to be unconstitutional by a 4:1 majority contending that NJAC is violative of the basic structure. Hence, the collegium persisted, but the SC agreed that the collegium is not impeccable, and has to be rectified. However, it did not advance any of the improvisations for the collegium.

PROBLEMS WITH THE COLLEGIUM

Justice Bhagwati rightly observed ‘the exercise of the power of appointment and transfer remains a sacred ritual whose mystery is confined to a handful of priests’. The process of judicial appointments is still clandestine as the establishment of the collegium can only be seen as a substitution of the priests, and not the unraveling of the mystery. Furthermore, the new priests are more dangerous as compared to the older priests as no one can keep a check on them.

No individual is immune from prejudices, and so is the judge.[iii]The Judiciary has been rightly accused of instances of favoritism, subjectivity, personal animosity. Albeit, if there is an objective mechanism, one can divest oneself from prejudice. The SC, in the NJAC case could have done away with the element of subjectivity by specifying objective guidelines for the functioning of the collegium, but it missed a major opportunity. Therefore, the collegium is still looked with skepticism.

CONCLUSION

The Judiciaryhas successfully eliminated political interference in judicial appointments by bringing in the collegium system, but judicial independence is still not secured. This is because the Executive continues to play a decisive role in matters of post-retirement benefits that a SC judge receives. Justice Subbarao who was known for dissenting in most of his judgements, did not dissent even once after becoming the CJI.[iv] One could say that this was done to appease the government, so that he can receive incredible post-retirement benefits. Such instances may occur again as the Executive invariably tries to allure the judges through post-retirement benefits. Judicial independence in the truest sense can be achieved only when the judges themselves are free from the clutches of the Executive.

The Judiciary is the custodian of the Constitution. And as the judgement making power vests with the Judiciary, it should exercise the power in arbitrium boniviri. In my opinion, the SC rightly shrugged off the involvement of the Executive from judicial appointments. It has been witnessed that the involvement of the Executive certainly brings a degree of political intervention, in furtherance of which autonomy of the Judiciary gets crippled. The collegium is indeed the most competent body when it comes to appointments.But zero transparency and nonobjective criteria in appointments vitiates the goal with which the collegium was brought in the first place, i.e., impartial appointment of meritorious judges.

Judicial Exclusivity in matters of appointment has become a necessary evil. Even though it is contrary to what the Constitution entails, it safeguards the greater good of judicial independence which is indispensable in a democracy. However, judicial accountability should not be compromised in securing judicial independence.[v] Attempts should be made to strive towards greater accountability without endangering independence. Soli Sorabjee has rightly said that no system can be perfect;trusting the Judiciary is anytime a better choice than trusting the Executive; instead of exorcising the collegium completely, it is better to make it more credible by broadening it.

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[i]Supreme Whispers, Abhinav Chandrachud, Pg-124

[ii]Id, Pg-117

[iii]Working a Democratic Constitution, Granville Austin, Pg-131

[iv]My Own Boswell, Justice Hidayatullah, Pg-209

[v]Judicial Independence, Justice BN Srikrishna, available in The Oxford Handbook of The Indian Constitution, Pg-389