India Is On Its Way To Establishing An Unaccountable Higher Judiciary

It is nearly 10 months since the Supreme Court struck down the National Judicial Appointments Commission (NJAC), a law passed by overwhelming majorities in both the Parliament and over half the state assemblies. But, we are nowhere near an agreement between the executive and judiciary on how to appoint or remove judges in future.

It is easy to dismiss this as another instance of the usual tensions between elected representatives and judges, who are there to interpret the constitution, but we would be wrong. It may be an ego tussle, but it is also a case of judicial unaccountability.

Conscious of the fact that it had effectively overruled the people of India in a case (i.e., NJAC) in which it was itself an interested party, the five-judge Constitutional Bench—headed by Justice J.S. Khehar— offered a minor sop to the executive to prepare the “memorandum of procedure” on judicial appointments. In other words, judges will still hold all the high cards and decide who they will appoint as fellow judges, but the government can decide the procedure. Surprisingly, the Memorandum of Procedure (MoP) is going back and forth between the law ministry and the judiciary, and still not finding consensus.

The bone of contention is essentially this: whether the government should have any say at all in rejecting some choices of the court collegium, on grounds of national security or corruption. The Chief Justice of India (CJI) and the members of the collegium want to not only decide who should be appointed, but who should not be appointed. The government can, at best, offer suggestions and reasons. It is the collegium that will decide.

The latest in the list of MoP ideas from the government is one to set up a “mechanism to deal with complaints against judges”, both in the Supreme Court and the High Courts. This is being resisted by the CJI and the collegium, reports The Times of India today (1 August).

It is not clear if this determination of the government to have some leverage against corrupt judges will pass judicial muster, for the Supreme Court simply has to say “no” and that’s it. But, if the CJI is wise, he will not do so. It cannot be his case that judicial corruption will be decided by him and him alone— as is the existing norm.

The argument which the Supreme Court has often given to give itself extraordinary powers in the appointment of judges— a freedom that is not given to the judiciary in any other part of the world— is that this will impair independence.

This is hogwash.

It was never the intent of the Constitution’s makers to give the judiciary complete independence in the appointment of judges. Article 124 says that “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..”

Put simply, the primary role in judicial appointments is that of the government— as long as the judiciary is effectively consulted. Put differently, it means the judiciary can reject government choices by not concurring with the government’s suggestions on judicial appointments, but there can be no denying the active role assigned to the government in this job.

In any case, no matter who gets primacy in judicial appointments, governments can always chip away at judicial independence in several ways, including by giving judges post-retirement jobs or by exerting pressures on costs and outlays for courts. This was the Congress method of indirectly influencing the judiciary.

In any event, is judicial independence the result of judges deciding who else can be judges? Would this not negate the very principle of separation of powers which is a foundational principle in every democracy? And did the fact that judges were earlier appointed by the government in consultation with the CJI (i.e. before the creation of the collegium) prevent the judiciary from giving verdicts that went against the government? Was Indira Gandhi not thwarted by exactly one such judge appointed by her?

Second, independence is not something that only the judiciary needs. Do bureaucrats not need independence? Or the police? Or the executive, from Prime Ministers, down to Chief Ministers and Ministers? While all arms of a democracy may misuse any independence they have, the fact is that there are in-built restraints and external scrutiny of all their actions. If independence from external scrutiny is important, why then have vigilance commissions and Lokpals chasing every corrupt act of every other functionary barring the judiciary?

The third, and equally important reason to question the Supreme Court’s claim that independence depends on having total power over appointments, is its own past failure self-supervise. Six years ago, senior counsel Shanti Bhushan openly said in the Supreme Court that eight former CJIs were corrupt. He even handed a sealed cover with names to the court.

Did the court appoint a Special Investigation Team to look into those instances of alleged corruption? It just gave an embarrassed shrug and moved on.

The short point is this: no institution of democracy is enlightened enough to police itself. The judiciary, too, is no exception.

If, in its short-sightedness, the Supreme Court rejects the idea of an external panel to look into complaints against judges, it essentially will be saying that “we cannot be accountable to anyone.”