A matter of political wisdom
National Judicial Appointments Commission Act No. 40 of 2014—NJAC-- -- unanimously passed by the Parliament of India was struck down by the Supreme Court of India recently and declared as unconstitutional and an unhealthy atmosphere of mutual disbelief and distrust took an ugly turn in the history of constitutional era anew. At the outset, I beg to submit that this is not a criticism of the judicial ruling. It is my humble submission. Was the case necessary?
The legal fraternity in India was consulted and the duly elected representatives in the Central legislature were well informed on the issue and several prominent legal luminaries were approached, even the previous government in power too had lent its support in the new House. At the international scenario, the legislature has a prominent and decisive role in the composition of the Judiciary of the respective countries and despite this the NJAC was invalidated. Wasn’t the Finance Minister right when he submitted that ‘ how can the resolution of the elected House be undone by the unelected ones?'
The Collegiums system invented and initiated by the Supreme Court of India two decades ago was re-ushered in to protect the judiciary --caress the cartel ? The Judiciary may be thoughtfully right also given the parliament’s unparliamentarily performance witnessed. However unpopular it may seem, the Supreme Court’s ruling needs to be treated as a serious precautionary harbinger. It is equally important to note that it is not enough to merely adhere to the letter of the rule of law alone, it is also essential that the three pillars of the Constitution of India and the ‘fourth estate’ are replete with political foresight and wisdom as well.
Let us refer the rule book.
Constitution of India : Art.124 in the Constitution of India states : “ Establishment and Constitution of Supreme Court—(1) There shall be a Supreme Court of India consisting of Chief Justice of India and , until Parliament by law prescribes a larger number, of not more than seven other judges.
(2) Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, Chief Justice of India shall always be consulted.
Art.214 to Art.217 deal with the Constitution and appointment of High Court judges which are almost similar to those of the Supreme Court. It is important to note that in the case of the High Court appointments even the Chief Justice of the High Court and the Governor of the State are also required to be consulted.
If we refer carefully the provision under Art.124 (3 ) (c ) , an eminent/ person who is known as a distinguished ‘jurist’ in the opinion of the President , shall be qualified to be appointed as a judge of the Supreme Court.
It is important to note that Section 5 , sub-section 2 of the ‘NJAC Act 2014’ had taken into consideration , the provision made under Art.124 (3 ) of the Constitution of India while recommending a name for the appointment of a Judge.
Section 5 and Section 6 of the NJAC Act 2014 deal with the procedure of the appointment of the judges of the Supreme Court and the Hugh Courts in India. Under both these Sections, meticulous care was taken to strictly adhere to the established norms and customs in making appointments. The Chief Justice of India, the Chief Justices of the High Courts, the Governors of the States were required to be consulted by the NJAC before making appointments of the Judges. Executive interference was not on the cards (as this very fear seemed lurking in the mind of the Judiciary). Unfortunate, unfounded ‘Don Quisotic’ fears. Moreover, it has to be noted that ‘collegiums’ has no reference whatsoever in the Constitution of India. It is interesting to note that Art.124 (1) states,’There shall be a Supreme Court of India consisting of a Chief Justice of India , and ….’. The question is whether the office of the Chief Justice of India is a Constitutional creation and of ‘primacy’ and cannot be a subject matter of any Commission. The legal position requires a serious study.
Law Commission of India: 214th Report:
Let us refer to what the 214th Report of the Law Commission of India has to recommend---“There was no problem till 1993 when the judiciary tried to re-write the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged”, he said. The Chairman of the Departmental Related Parliament Standing Committee of Personnel, Public Grievances Law and Justice in its 28th Report presented to the Hon’ble Chairman of Rajya Sabha on August 2008 has stated thus:- “I would like to conclude by saying that the Government should expeditiously see to it that appointment of Judges in High Courts and Supreme Court are done in a transparent way.
“We have recommended in two ways: One is, we have to see to it that the collegium system has to be done away with, since appointments will be delayed, we have said that from the very beginning of identifying the eligible persons, the various places of recommendations, be it at the level of the High Courts, or, at the Governor’s level or at the level of the Departments, and finally be the Supreme Court, should be transparent, and this should be put up in the web site then and there so that the person, who is going to occupy the Constitutional place, is known to the public, and their background should be allowed to be discussed by the public and, finally, it has to go through the process of issuing warrant by the President of India. But, what is happening presently is that from the day one of identifying the person till the issuance of the warrant, nothing is known to anybody except to the persons who are involved in it. Even the persons, who are identified and who are going to be made as judges of the High Court or of the Supreme Court, may not know about it. This type of secrecy is not good for democracy”.
It may be noted in this context that in every High Court the Chief Justice is from outside the State as per the policy of the Government. The senior most Judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.
“Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments. “
(Dr. Justice AR. Lakshmanan) Chairman and (Prof. Dr. Tahir Mahmood)
(Dr.Brahm A.Agrawal) Member Member-Secretary; Dated: 21.11.2008.
(Source: 214th Report of Law Commission of India, Government of India, pages: 57 - 60).
The Report has properly pointed out that appointments made should not suffer from inadequacy of information. Secrecy of any sort in this regard is not good for democracy.
The Law Commission has gone on record recommending to do away with the Collegiums in the interest of bringing about transparency in the process of appointments.
Elsewhere in the world. Let us have a cursory reference to what happens in other democracies.
United States of America:
Procedure of appointment of Judges in the United States of America which is a great democratic State is as following :
Quote: “ 1. Section 2, Article II, the United States Constitution states: "[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States…” All federal judges are appointed by the President of the United States with the advice and consent of the Senate.
(Source: The Process of Appointment of Judges in Some Foreign Countries: The United States: 22 November 2000: Prepared by Mr CHEUNG Wai-lam Research and Library Services Division; Legislative Council Secretariat 5th Floor, Citibank Tower, 3 Garden Road, Central, Hong Kong ).
In a European democratic country like Germany , the features of the recruitment of judicial officers is not different
“Federal Republic of Germany : Quote: Germany has a career judiciary, judges join the judiciary early in their working life and spends their career working in it; although the judicial appointments process begins with an application, there are regional variations in recruitment procedures;
There is political involvement in appointments procedures however there is some judicial involvement in the appointments process either through judicial electoral committees or advisory bodies;
The Minister of Justice makes decision on promotions: in Lander, judicial electoral committees are involved in making recommendations and at federal level, the Prasidialrat which is composed of judicial members provides advice.
Promotion opportunities can be limited in Germany. Judges can seek secondment opportunities in other areas for example as court clerks in higher courts or in Ministries of Justice;
Legislation requires that the removal of a judge from judicial office without consent is made by a judicial decision. There is also special provision for removal of Constitutional judges for acting against the constitutional order.
United States: There is both a federal and state court system in the United States. All federal judges are appointed by the President with the advice and consent of the Senate. These judges hold office during good behavior;
No two state court systems are exactly alike; Most state court judges are not appointed for life but are either elected or appointed for a certain number of years;
There are five basic methods for selecting judges at the state level: merit selection, non-partisan election (party affiliation not designated on the ballot paper), partisan election (party affiliation listed on the ballot paper), gubernatorial appointment and legislative appointment/election;
At federal level, judges can be removed in Congressional impeachment proceedings. A variety of removal systems are used at state level,
Comparative Key Points: Quote: “The models of judicial appointment in the US and Germany are subject to political involvement at various levels. These models are interlinked with other elements of the legal system and traditions of these countries.
“The models include Germany: Role of Minister of Justice in appointments in the states: Electoral committees comprised of judicial members and political representatives for example in Germany (state level);
“Electoral Committee at Federal level comprised of political representatives of the Federal and Lander Parliaments;
“At Constitutional Court level, judges are elected by the upper and lower chamber of Parliament.
“United States Presidential appointment with advice and consent of the senate (Federal level) Commission based appointments, also known as merit selection; usually involving an election at some point;
“Judicial elections: Gubernatorial appointment (appointed by the Governor); this is similar to the Federal system.
Legislative appointment or election”
(Source : A research article by Fiona O’Connell & Ray McCaffrey : Judicial Appointments in Germany and the United States: Northern Ireland Assembly, Research and Information Service , Paper 60/12 ; 15 March 2012).
In Switzerland in some cantons , judges are directly elected from among the people which is an example of ‘direct democracy’.
In United Kingdom, parliamentary supremacy is beyond doubt and question. In UK such a strange conflict cannot be even dreamt of .
The legal functionaries in India therefore, need not raise the war over ‘whose supremacy’ between the two Constitutional pillars. However nobody can afford to forget that India is a Constitutional republic with a democratic structur as well as responsible and accountable government in a parliamentary democracy. In fact, NJAC was a step towards reinforcing the ‘Judiciary’ keeping public interest in view. It was a step towards cleansing the process of justice. It was a step towards preparing way to clear the unbelievable number of pending cases expeditiously. Popular will has to prevail. Justice is an idea which is acceptable to the ‘general will’ and articulated by a more competent few select. After all no judiciary in the world is immune from rigorous intellectual scrutiny. Furthermore, people get the government they deserve.
In view of the above can anyone allege that the Union Government was on a mischievous plan?
The NJAC was merely reiterating the case which was the need of the hour.
(The subject needs further in-depth research study)