The Supreme Court’s decision to scrap the National Judicial Appointments Commission (NJAC) Bill has not only created a rift between the judiciary and the executive arms of <g data-gr-id="123">government,</g> but also raised some fundamental questions about the nature of Indian democracy. Finance Minister Arun Jaitley, an erudite lawyer himself, has presented some compelling arguments against the apex court’s decision. Before getting into the arguments posed by Jaitley, it is imperative to ascertain what the NJAC had entailed and the historical context behind judicial appointments. The NJAC is a constitutional body that was proposed to replace the present Collegium system of appointing judges before it was struck down. 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 usually appointed, undermining the judiciary’s independence. However, in a landmark judgment in 1993, the apex court held that the independence of the judiciary, which is part of the basic structure of the Constitution, was being compromised by executive primacy in key appointments. “The Judgment interprets the provision of Article 124 and 217 of the Constitution. Article 124 deals with the appointment of Judges of the Supreme Court and Article 217 deals with the appointment of Judges of the High Court. Both provide for the appointment to be made by the President in consultation with the Chief Justice of India. The mandate of the Constitution was that Chief Justice if India is only a ‘Consultee’. The President is the Appointing Authority,” Jaitley writes in his dissenting post. What the judgment in 1993 did was to ‘reinterpret’ the word ‘consultation’, and wrested the power of appointments back from the executive. 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. The NJAC Bill was overwhelmingly passed by both Houses of Parliament to reestablish the system of checks and balances and wrest some of its powers to appoint judges from the judiciary.
The NJAC would have consisted of six <g data-gr-id="106">people-the</g> Chief Justice of India, the two senior most judges of the apex court, the Union Law Minister and two “eminent persons”. These “eminent persons” were to be nominated by the Chief Justice, the Prime Minister and the Leader of Opposition in the Lok Sabha for a three-year term and would remain ineligible for renomination. However, according to noted lawyer Prashant Bhushan, “there was no provision of transparency or any rational basis for selection”, in the NJAC Bill. But the ultimate bone of contention in the NJAC Bill between the executive and the judiciary was that a judicial appointment could be vetoed by any two members of the Commission. The argument posed by the opponents of NJAC was that the presence of a Law Minister and two eminent persons would constitute political interference in the appointment of judges.
Suffice to say, the argument is correct. However, what the argument fails to take into consideration is that the Law Minister is a democratic representative, elected directly or indirectly, by the people of India, and therefore, accountable to Parliament. Moreover, the personnel involved in the appointment of “eminent persons”, especially the Prime Minister and Leader of Opposition in the Lok Sabha, have been elected by the people to make decisions on their behalf. Therefore, Jaitley is right in arguing that while the judgment sought to protect the judiciary’s independence, it undermined the supremacy of Parliamentary democracy- the most important element of the Constitution’s 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. Funnily enough, one of the <g data-gr-id="116">judges,</g> made a reference to LK Advani’s recent comments that an Emergency-like situation still persisted and that civil society was not strong enough. Under such circumstances, the implicit assumption here was that the country needs an independent judiciary. True, every democracy does need an independent judiciary, but not for the reasons stated by the honorable judge. The strength of every institution is based on the strength of its people and the rules and principles that govern its daily functioning. People will come and go, but the rules and principles will still remain. 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”. Yes, the NJAC is flawed. But this is no reason to completely scrap the Bill and reinstate the Collegium system. In years of come, this debate will continue to play out.