Judicial Independence or Judicial Supremacy?

The Supreme Court recently struck down the NJAC (National Judicial Appointments Commission), a legal body that decides the appointment of Judges of Supreme Court and High Court.

The landmark judgment held that the NJAC was ultra vires of the basic structure of the Constitution, for not allowing the judiciary to enjoy its independence, for reasons of unwarranted interference in deciding the appointments by the executive. Before getting into the merits of their arguments, let’s just understand why the NJAC was made in the first place.

The entire rationale of the NJAC was to undo the damage the Collegium had done by allowing itself unlimited discretion by deciding who will be the Judge, and such method and mode of appointment was undefined, vague and ambiguous. Moreover, by allowing itself to be the ultimate decider, it had the 99th Constitutional Amendment, which was brought into existence to replace the Collegium by a broad-minded panel of people, which would provide an inclusive and more democratic method by which Judges are appointed by people who are not only part of executive or judiciary but even other laypersons.

This amendment would include three articles; the first is Article 124-A which would comprise of CJI, his two senior-most Judges of the Apex Court, the Law Minister and two eminent persons, under the joint appointment by the Prime Minister, the leader of Opposition and the CJI. The second Article 124-B talked about the powers that NJAC vested itself to make appointments for Judges to both the High Court and the Supreme Court. The third amendment was 124-C which ordained the Parliament to make laws regulating the manner of NJAC.

The Supreme Court held that NJAC posed a serious threat to judicial independence, as having the executive and two eminent persons to decide what is best for the judiciary, was not free from political pressure, bias and political interests. However, what the Court did not explain how Judges deciding on appointing others excluded them of the same problems that they accuse the outsiders; namely the executive and laymen, considering the Collegium’s history of appointing corrupt Judges, or that the Collegium does not adequately prescribe a transparent process in giving reasons as to why it would not choose a deserving candidate. Therefore, it is fairly evident that the Judiciary’s claim of it being independent, by allowing the Judges to decide for others, is as best as a hypocritical claim.

I believe that the Constitution needs to have separation of powers, but one cannot undermine the other. The Judiciary cannot be said to be working independent of people’s interest, as it is answerable to the Constitution. Hence, Constitutional Supremacy is more essential and important than judicial supremacy. The Court should take into account all political opinions and non-political opinions to arrive at appointing Judges, rather than using its own standards to insult the people, the executive and other forms of Government.

Secondly, if the judiciary claims that if Judges, with their expertise and experience, are in a better position to decide, hence they will be apolitical, how does the judiciary explain various decisions that it has laid down that no less political, such as its verdict on Section 377 in the case of Suresh Kumar Koushal v. Naz Foundation, by recriminalizing homosexuality? This clearly shows that the Judges themselves are entrenched with bias, political or otherwise, that they take into account while articulating their judgements. Hence, it becomes evidently clear that by gaining dominance in the process of appointment, the Court is still very much not independent. By upholding the Collegium system, while the Judges and the CJI of the Supreme Court may have had the authority to decide appointments, and hence will be independent, does not solve the question as to how their judgements will be bias free or apolitical.

Broadly, the Court instead of striking down the Amendment as violating the basic structure of the Constitution, should have adequately dealt with parts of the amendment, by concentrating on reading down the parts that were ambiguous or prone to threatening judicial independence, and dealt with the issue of describing the criteria for determining who is 'eminent person'. By striking down the entire NJAC, the Court has undermined decades of efforts that was trying to bring democratic, transparent and accountable system of judicial appointment. The autocratic nature and hypocrisy is been proved by this judgment. In view of the criticism against the collegium system, the Court confirmed that there are drawbacks in the existing system and in order to improve the future of the Collegium system, the Supreme Court invited suggestions from various entities.

The credibility of the Collegium system ought to be based on the following five principles- transparency, competency, integrity, gender diversity and conflict of interest. Each of the five principles needs to be addressed, for bringing the efficient reform in the Collegium system. One of the major drawbacks which the Collegium has faced is transparency and diversity. The selection criteria in the appointment of Judges had been very secretive to the public. In the past, there have been numerous instances, when outside the system, nobody knew why the meritorious Judges were rejected.

Another challenge has been the gender diversity in the selection process. The Indian judiciary had its first women Judge, Justice M. Fatima Beevi after 37 years of independence and till 2010, only 50 women Judges were appointed to the High Courts and Supreme Court in comparison to appointment of a total of 651 Judges. The statistics very evidently implies that gender diversity is a matter of concern, which needs to be addressed for the better future collegium system. Thus, it can be envisaged that transparency would definitely lead to increase in the appointment of women judges in the High Courts and Supreme Court. Several times, Judges have been alleged to exercise arbitrary powers, by giving preference to their relatives over meritorious Judges during the selection process. In order to curb the discrepancies, there needs to be evolution of certain threshold to measure the competency of the individual and eligibility criteria should be accessible to common people to avoid possibility of any flaws in the system.

I strongly believe, by taking the following principles into account, the judiciary might be able to restore faith of the common people in the legal system and judicial independence would not lead to judicial supremacy, thus we can re-imagine a credible Collegium system.