What SC striking down NJAC means for our democracy
How the Supreme Court perpetuates itself reminds me of how the India International Centre's (IIC) Board of Life Trustees perpetuate themselves. All decision-making at the IIC is vested with the Board of Trustees. Each trustee is expected to be "an eminent authority in his/her field, bringing years of experience to the governing of the Centre". A life trustee's term is till the end of life. When the rare vacancy arises, the surviving life trustees meet to decide on who the next life trustee should be. There are two elected trustees too, but the real clout in the IIC is with the very clubby group of life trustees.
The only difference between the IIC life trustees and the Supreme Court is that judges retire. But like the IIC's life trustees, new Supreme Court judges are chosen by those already in it and are in its "collegium of judges". The collegium also selects judges to the high courts. The collegium comprises the chief justice of India, four senior-most judges of the Supreme Court and the chief justice of a particular high court and its two senior-most judges.
The collegium system was not envisaged in the Constitution. Article 124 vests the power of appointment of the chief justice of India (CJI) and the judges of the Supreme Court in the president. It explicitly states that the president shall by warrant, make the appointment after consultation with such of the judges of the Supreme Court and the high courts of the states, as he may deem necessary.
The important point to be noted here is that the provision expressly states "after" consultation and not "in" consultation. This very simply means that the government will choose and seek the CJI's opinion on the selection. A plain reading of the provision tells us that the power of appointment vests in the president. The president, of course, means the executive. The president can act only on the advice of council of ministers.
The CJI stands as part of the "trimurti" comprising the president, prime minister and himself, representing the executive, legislature and judiciary. While they are supposed to function independently of each other, they cannot remain hermetically sealed from each other either. The branches are required to work with each other and influence each other in giving this country a stable, respected and trusted system of government that will serve the people and protect their interests too.
Having said that, democracy is the rule of the people. The only institution in the "trimurti" that directly derives its legitimacy and power from the people is the legislature, with Parliament at the apex. The emphasis on separation of powers is only to protect the other two pillars of democracy from the overweening and overriding of a rampant Parliament. But separation of powers does not mean an entirely independent existence either.
It is possible to visualise a situation where the government disregards the CJI's opinion, and one can hence see a well-founded apprehension of the executive riding roughshod on the judiciary. That is why the system of government envisaged in a democracy is a system of checks and balances. This is a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.
Democracy is also a system of government by accommodation. The spirit of accommodation calls for a certain political temperament and commitment to make the system work and not be focused on overreaching one and another.
The selection of judges from the first days of the Republic was vested with the executive. But in 1993, in something akin to a coup, the Supreme Court created the collegium system, which has been in use since the judgment in the second judges case was issued in 1993. There was no mention of the collegium either in the original Constitution of India or in successive amendments. The collegium was the creation of the Supreme Court to arrogate to itself the right to choose brother judges. The creation of the collegium was a reaction to the indiscriminate transfer of judges, which was perceived as an attack on judicial independence. The reaction of the Supreme Court was to completely oust the executive from the selection of judges for the Supreme Court and the high courts.
Since 1993 the judges have been perpetuating themselves without any reference to the executive. To be fair, the executive hasn't exactly been reduced to a rubber stamp as we have seen in the matter of Gopal Subramaniam. But the power to initiate a judicial appointment is clearly with the judiciary.
This power is without precedent. In the US, the president initiates the appointment to the Supreme Court and recommends a candidate for the Congress to approve. In the UK, the Judicial Appointments Commission (JAC) set up in April 2006 selects selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland.
The JAC was set up to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. Its creation was one of the major changes brought about by the Constitutional Reform Act (CRA) 2005, which also reformed the office of Lord Chancellor and established the Lord Chief Justice as head of the judiciary of England and Wales.
But the JAC is very clearly not a creature of the judiciary either. In accordance with the CRA there are fifteen commissioners, including the chairman. All are recruited and appointed through open competition with the exception of three judicial members who are selected either by the judges' council or the tribunals' council. Membership of the commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public.
While stripping the Lord Chancellor of the power to make judicial appointments, the CRA ensured that the chief justice did not seize it either. Instead a system was created to ensure that merit that is independently arrived at is the only criterion for selection. Nepotism, corruption and favouritism are not exclusive to the executive. The judiciary too has shown that it has not remained untouched by this. The National Judicial Appointments Commission, which was unceremoniously dumped by the Supreme Court, was an attempt to find a via media to restore merit as a criterion, and yet ensure the independence of the judiciary. The NJAC contemplated the participation of both the executive and the judiciary in making recommendations. The attorney general captures the mood and need exactly when he said: "The executive appointed judges for 40 years. Then, the judges appointed judges through the collegium system for more than two decades. Let the new NJAC mechanism be given a chance to work."
The court has overreacted by holding the 99th Constitutional Amendment Act and the NJAC Act 2014 "unconstitutional and void"; and by doing so the court has ignored the unanimous will of Parliament, most of the state legislatures and the desire of the people for transparency in judicial appointments. It has perpetuated a system that has not proven to be anyway superior to what it had superseded. On the other hand, it has thrown down a gauntlet at that most fundamental notion of a democracy that the people speak through their Parliament. It is now for the people to pick up the gauntlet.