Judicial limbo

 MPost |  2015-10-17 21:10:24.0  |  New Delhi

The apex court on Friday struck down the 99th Constitutional Amendment and the National Judicial Appointments Committee (NJAC) Act as unconstitutional and restored the collegium system for the appointment of judges to the higher judiciary. “While upholding very dearly the principle of independence of the judiciary, I regret to say that parliamentary sovereignty has received a setback today,” said Union Communications and Information Technology Minister Ravi Shankar Prasad.

Suffice to say, the minister is right. The decision to strike down the entire bill disrespects not only the executive arm of the government but the very will of the people. The ruling does come in conflict with the will of people primarily because the NJAC Act was overwhelmingly passed by both houses of Parliament and by 20 state assemblies. Although the 1000-page judgment is yet to be accessed by the larger public, it is amply clear that judges themselves are an interested party in this verdict. To restore the faith of the judiciary, a larger constitutional bench needs to revisit the matter. Admittedly, the NJAC Act had its share of imperfections.
 
The judiciary was right to question the executive on certain provisions of the Act, which could have possibly impeded the judiciary’s independence. Nonetheless, the court’s decision to strike down the entire bill is unfortunate at best. Instead, the court could have established a sufficiently narrow interpretation of certain provisions to bring it in line with the demands of the Constitution; it could have read down certain provisions it felt had impeded on the judiciary’s independence. Worse, the judgment appears to have restored the collegium system with no checks and balances. Judges will now continue to appoint themselves, a scenario unheard of anywhere else in the world. For example, in the United States, Supreme Court judges are appointed by the President of the United States, and the US Senate must confirm their appointment. The American system, for all its flaws, at least respects the principle of balance of power and checks and balances, which is central to any democracy. One only hopes that the Indian Supreme Court revisits the matter. 

Critics of the collegium system of appointments have insisted that the judicial appointments process lacks transparency and accountability. 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, and the recent judgment only muddies the water further. Moreover, critics argue that recurring judicial activism has disturbed the delicate balance of powers enshrined in the Constitution of India. It’s not as if our Supreme Court justices have not noticed these discomfiting lacunae. However, a standoff between the two sides cannot continue for long. According to eminent lawyers, if judges continue to retire, with replacements not available, the overburdened litigation system will collapse. Although, since the apex court appears to have restored the collegium system, there is much confusion on the matter. Both houses of Parliament had quashed the collegium system, by enacting the NJAC. The judiciary does not have the power to make <g data-gr-id="40">laws,</g> but only interpret them. It is the legislature that enacts laws. And the legislature has consigned the collegium system to history. How the system proceeds from here on out will be interesting to watch.

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