Another roadblock

As per recent reports, the Supreme Court Collegium, which examined the revised Memorandum of Procedure presented by the Centre regarding the appointment of judges to the apex court and the high courts, is learnt to have objected to a major clause.  The MoP, a document which guides the appointment of apex court and high court judges, was revised after a Supreme Court bench asked the government to rewrite it in a bid to make the Collegium system more transparent. According to one of the clauses, the Collegium’s recommendation can be rejected by the government if it feels the appointment is not in the overall interest of the country.

 The MoP also says once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the Collegium. At the heart of this debate lies an age-old clash between a desire for judicial independence and the system of checks and balance—a defining feature of any functional democracy. The Supreme Court’s decision to scrap the National Judicial Appointments Commission Bill late last year had not only created a rift between the judiciary and the executive arms of government but also raised some fundamental questions about the nature of Indian democracy.   The NJAC Bill was meant to replace the Collegium system of appointments. Under the Collegium system, the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend the appointment and transfer of judges. Although this system finds no actual mention in the Indian Constitution, it was evolved through a series of Supreme Court judgments in the 1990s.

Initially, the power of appointing judges was rested with the government, which was only required to consult with the Chief Justice of India on the appointment of judges to the higher judiciary. Before the onset of a Collegium system, “politically committed” judges or those beholden to the ruling establishment were appointed, undermining the judiciary’s independence. Although the Collegium system did bring greater independence to the judiciary, the appointments made through it were non-transparent, and often riddled with allegations of nepotism. The system of checks and balances plays a vitally important role in ensuring that none of the three branches of government: executive, legislative and judicial can limit the powers of the others.

 This way, no one branch can try and become too powerful. Except that, this conceptual clarity has not translated into reality. Moreover, critics argue that recurring activism by the judiciary in matters under the direct jurisdiction of the Executive has disturbed the delicate balance of powers enshrined in the Constitution. When the apex court struck down the NJAC Bill, Union Minister Arun Jaitley argued that while its judgment sought to protect the judiciary’s independence, it undermined the supremacy of Parliamentary democracy- the most important element of the Basic Structure. Moreover, appointments to institutions like the Election Commission, the Comptroller and Auditor General of India and the Reserve Bank of India are made by elected governments. Today, one would find it hard to argue against the integrity of such institutions. True, every democracy does need an independent judiciary. However, the strength of every institution is not merely based on the strength of its people, but the rules and principles that govern its daily functioning.

What guarantees do we have that the current Supreme Court won’t crawl like its counterpart in the Emergency, under very different pressures and interests? Without checks and balances, you have, as Jaitley argued, “the tyranny of the unelected”. Unlike the Collegium, the government is accountable to the people of India. Due to the stalemate over the NJAC and the subsequent procedure to draft the MoP, the process of appointing judges has come to a halt. But will the judiciary pay heed to the calls for greater reform? A resolution to the problem is urgently needed.