We witnessed a major debate on Times Now moderated by its Editor-in-Chief Arnab Goswami. Billed as a debate between the executive and the judiciary, it had former Chief Justice Lodha along with senior lawyer Rajeev Dhawan representing the judicial perspective with Finance Minister Arun Jaitley taking up the cudgels on behalf of the executive with support from former Attorney General Soli Sorabjee. Senior journalists Dileep Padgaonkar and Swapan Dasgupta completed the forum.
The immediate trigger to organize an unprecedented debate of this nature was the overwhelming rejection of the proposed National Judicial Appointments Commission by the Supreme Court of India which succeeded in engendering some very strong feelings! Jaitley had used expressions like the 'tyranny of the unelected'.
The government had supposedly initiated the Commission as the first step toward comprehensive judicial reforms. The Bill enjoyed cross-party support hence most political formations had taken exception to some of the observations by the Supreme Court.
The debate was a revelation in many regards. Some very cogent arguments were placed by both sides. Arun Jaitley very forcefully made a case that parliamentary sovereignty was being disregarded by the court’s rejection of a Bill that had cross-party support. Justice Lodha was equally eloquent when he stated that while he recognized the major pitfalls of the collegium system followed in the appointment of judges to the higher courts, the NJAC in the form that it was presented was likely to have serious implications for judicial independence which was a sine qua non in a democratic setup. Soli Sorabjee pointed out that in none of the modern democracies did the judiciary have the sole power in appointment of judges. To which Rajeev Dhawan retorted that Indian democracy and judicial needs were sui generis hence we should not unhesitatingly emulate the other nation states.
The debate then focussed on the problems both the judiciary and the executive had faced since the introduction of the collegium system in 1993 at the instance of Justice Verma. Jaitley pointed out that Verma himself had expressed serious misgivings about the system after his retirement and that as a Law Minister he was involved in recommending rejection of a name for elevation to the higher bench in which he had the then President Kalam's support which was ignored by the collegium. Justice Lodha revealed that he had come to know of an investigation against a name proposed for elevation which had been concealed by the executive.
One criticism that I had of the entire exercise was that it tended to meander into issues that were extraneous to the actual substance of the debate. Perhaps moderating luminaries of that eminence was a task that even Arnab Goswami was finding difficult. An inordinately long time was spent on debating certain issues which have already been settled. For instance Arnab Goswami wondered whether the judiciary was attempting to re-interpret the Constitution and discovering certain provisions which were not clearly stated. Rajeev Dhawan’s rejoinder in my view, conclusively stated that the Constitution was always going to be interpreted and re-interpreted by the Court and that this was a ubiquitous phenomenon. Every constitution in the world with the passage of time has been found to confer rights previously unknown and not expressly stated in the letter of the document.
I was also not very comfortable with the amount of time that was devoted to the Constituent Assembly debates. We must remember that that Assembly had solicited views from all its members and most of the suggestions put forward did not find place in the document. Judicial independence debates had, if my memory serves me right consumed nearly 10 days and every hypothetical possibility was debated extensively. Even Ambedkar's own views as they appeared in those debates and deliberations were subjected to major modifications. It would have been better to confine the debate to the dictates of the Constitution as it stands now.
There was another disagreement about the need to insulate the judiciary from politics. Jaitley pointed out that two of the most distinguished Supreme Court judges Krishna Iyer and K.S. Hegde were career politicians before being elevated to judiciary. He also pointed out that the quality of judges before 1993 - barring 1970-75 - was better than after the collegium came into effect. He also pointed out that it is the executive that appoints constitutional authorities known for their independence. Justice Lodha rightly countered that these authorities would not be expected to perform judicial functions which require insulation from both executive and legislature. Repeated allusion was made to the infamous habeus corpus judgement which signalled the failure of judicial independence from the executive.
However the entire tenor of the debate was towards who would appoint the judges rather than how they would be appointed despite Dileep Padgaokar's valiant effort to steer it in that direction.
As a qualified non-practicisng barrister, I concur that executive/judiciary debate of this nature is very helpful in removing the mystique that judiciary carries. I also applaud the participants for articulating their concerns in the lucid manner they did. While the debate was a stalemate, we were left much better informed of the issues in question.
But there were certain other areas of paramount importance which needed adumbration but were skipped possibly for want of time. As the judiciary in other nation states was alluded to, I think it is very important to understand that despite the convergence of principles of jurisprudence, judges are expected to perform vastly different functions. For instance in India the judges post Nanavati case have to perform jury functions as well which is unknown in the US and the Crown Courts of Canada, New Zealand and UK. In France they are required to perform inquisitorial functions as well. Clearly the requirements would vary. Moreover the judiciary in the US is multilayered-circuit judges, county judges, State Supreme Court judges, Federal judges, Appeal Court Judges and Supreme Court judges with different legal jurisdictions. The US Supreme Court has only one constitutionally designated function-to interpret the Constitution.
It is nobody's case that a career politician cannot make a good judge. Earl Warren is a shining example. William Taft distinguished himself as the US Chief Justice after relinquishing his office as the President in 1912. Plus there have been instances of judges with questionable antecedants eg. Hugo Black, who grew into their jobs and distinguished themselves. On the other hand the US system requiring Presidential nomination and Senate confirmation is far from perfect. Presidents have been known to nominate judges unashamedly to fulfill their political agenda. Clarence Thomas was appointed to promote the Republican anti-abortion agenda despite major concerns about his suitability and unresolved allegations of sexual harassment. It should also be borne in mind that in an accepted democracy like UK, at least until 2005 the top judge viz. Lord Chancellor was also supposed to be the member of the Cabinet and Chairman of the House of Lords-in effect member of the executive, legislature as well as judiciary -throwing to the wind the principle of separation of powers. Rajeev Dhawan was absolutely on the mark when he stated that the Indian judicial system cannot be expected to function optimally with a system that is borrowed from another system. Further debate is necessary to improve upon the existing system and make it more transparent.
My own view is that the process of judicial reform should not be confined to the appointment of judges. The most glaring need for such reform was enunciated when Justice Ramaswami, declared guilty of moral turpitude by his colleagues was saved from impeachment by the Congress (I) legislators because of his closeness to powers that be. Judicial impeachment should be looked at and made simpler. Another important area that needs to be urgently incorporated as part of judicial reform process is proper supervision of lower judiciary. Instances have arisen where lower court judges have egregiously flouted the apex court directions with impunity and I know they have been brought to the attention of the Supreme Court of late. Most of us would have dealings with the lower rather than higher judiciary and it is my hope that the government would set into motion a more comprehensive judicial reform process that would address the major concerns that the citizens harbour.