We need judiciary for people and by people

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We need judiciary for people and by people

Tuesday, 14 February 2023 | Rajeshwar Singh

We need judiciary for people and by people

It is time we re-evaluated the collegium system and addressed its flaws to serve the best interest of the nation

As the cornerstone of any democratic society, the ‘will of the people’ forms the foundation of the Constitution of India. Among its various facets, the selection of judges for the higher judiciary, which serves as the repository of citizens’ rights, is of paramount importance for maintaining public faith in the judiciary. The current system of judicial appointments in India, the collegium system, has been the subject of much debate and controversy. It is imperative that we evaluate whether this system truly reflects the will of the people and serves the best interests of the nation.

Judicial appointments: History and evolution

When the Constitutional provisions relating to the appointment of judges to the Supreme Court (SC) and the High Courts were being debated, it was proposed that the appointment of judges should be made by the President in consultation with the Chief Justice of India (CJI). This was to strike a balance between the independence of the judiciary and ensuring that appointments are made in a fair and impartial manner. Accordingly, Articles 124 and 217 were framed to state that the President shall appoint the judges in the SC or High Courts in ‘consultation’ with the CJI, Governor of the relevant state (for appointments to High Courts) and other judges as the President may deem fit.

Despite the clarity with which the Constitution spells out the primacy of the executive as regards to the judicial appointments, the same has been the subject of multiple judicial decisions. In the First-Judges case (1981)’ the SC ruled that the government was not bound by the views of the CJI in the appointment of judges. This was overruled in the ‘Second-Judges case (1993)’ wherein the word ‘consultation’ in Articles 124 and 217was interpreted to mean that the government was ‘bound’ by the advice of the CJI, who in turn would consult two senior-most judges of the SC.

This paved the way for the current collegium system of appointment, which was further solidified in 1998. Despite subsequent challenges to the system, the SC has consistently upheld it, reaffirming its status as the established method for appointing judges. However, the question remains whether the Constitution intended for such a system in the first place.

Justice Dinakaran’s saga

It claims independence and impartiality. The collegium system is beleaguered by serious flaws that have had a detrimental impact on the functioning of the judiciary. Justice Ruma Pal noted “consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system.”

The case of Justice PD Dinakaran, who was recommended by the collegium for appointment to the SC in 2009, is a case in point. Despite facing serious allegations of illegal land acquisition and owning assets disproportionate to known sources of income, the collegium seemed hesitant in taking any action. Instead, in an unprecedented move, the collegium requested Justice Dinakaran to go on leave, which he refused, stating that the collegium did not have the power to do so. Subsequently, the collegium had him transferred to the Sikkim High Court as Chief Justice without investigating the allegations against him.

This raises several questions about the integrity and functioning of the collegium system. It begs to ask, why a judge who has an alleged case of corruption against him would be transferred to any High Court without investigation. Surely, Sikkim did not deserve to have a judge with such serious allegations against him.

Striking down NJAC Act, 2014

It is high time that we re-evaluated the collegium system and addressed its flaws to ensure that it truly reflects the will of the people and serves the best interest of the nation. The judgment of the SC striking down the National Judicial Appointments Commission (NJAC) Act, 2014, was a missed opportunity for meaningful reform of the appointment process. The Act included the right checks and balances that could have contributed to a more transparent and accountable appointment process.

A key aspect of the Act was the composition of the Commission, which was to consist of the CJI, two senior-most judges of the SC, the Union Minister of Law and Justice, and two ‘eminent persons’ who would have been appointed by a committee consisting of the CJI, Prime Minister and the Leader of Opposition in the Lok Sabha. This diverse composition could have ensured a balanced yet representative selection process.

Furthermore, the NJAC was required to invite applications and hold interviews for judicial appointments, and to make the proceedings of the interviews and the reasons for selection public. This transparency would allow the executive to participate in the selection process, but ensure that appointments were on merit and not lopsided. The SC, however, disregarding the merits of the enactment suggested that the executive is not to be trusted and that it would do all things possible to appoint the people they wanted to.

Accordingly, the Law Minister being a member of the NJAC, and that the participation of the Prime Minister and the Leader of Opposition along with the CJI in appointing the two ‘eminent persons’ would mean political involvement and would vitiate the whole process. Thus, the enactment was abolished.

Democratisation of the judiciary

It is important to acknowledge that the current system, despite being upheld by the Supreme Court, is not perfect and there is room for improvement. It is within legal bounds to engage in discussions about the system and consider ways to improve it.

The greatest irony of our country is that the people have no say in the selection of judges, which is not fair as the judges are appointed to serve the people. A completely unaccountable judiciary does not align with the concept of democracy. The Judicial Standards and Accountability Bill, 2010, and the NJAC Act, 2014, were proposed to ensure that elected representatives of the people have a say in the appointment of judges, this is the only way to ensure that the judiciary is representative of the diverse population of India and the views and concerns of the citizens are taken into consideration.

It is imperative that the judiciary remains open to interventions and suggestions for reform, as transparency and inclusivity are essential for the functioning of a fair and just judiciary. The judiciary must adopt the approach of, in the SC’s own words, “sunlight is the best disinfectant” in order to ensure that it is truly representative of the society it serves and is not beholden to any particular group or individual.

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