By Mihir Jha
A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power. ~ Justice Hans Raj Khanna, Supreme Court
The recent proposal of NJAC by Parliament to replace Collegium system for appointment of Judges in Supreme Court and High Court has opened Pandora’s Box with all political parties unanimously saying that our Judiciary has now become world class and that the NJAC will now make our Judiciary an ocean of honesty and integrity. The purpose of this article is to deal with series of lies being propagated not only by government led by Narendra Modi, who is on the verge of surpassing Indira Gandhi, and opposition, but also by many renowned journalists and analysts. Aristotle, 427 BC, says-“Law is nothing but an embodiment of reason, whether in the individual or community”.
We have, in our Hindu system, something called “Nyaay Shastra” which is a subject in itself on “reasoning”.Long ago, when there used to be no Supreme Court, High Court etc, these philosophers had said-“Law is about what conscience tells you to do”. Keeping this very basic nature of law in mind, there evolved something called Natural Law theorem. What does it say? It says following two things:
• Nemo Judex in causa sua: No one should be made a judge in his own cause or the rule against bias. The bias here means Personal bias, pecuniary bias, Subject-matter bias, Departmental bias, Pre-conceived notion of bias etc.
• Audi alteram partem: This refers to the rule of fair Judgement. It says that both parties should be heard.
One may buy a car worth billions of dollar but if it doesn’t move, its useless. Same is true with law. A court may achieve all operational efficiencies and excellence in terms of benchmarking with the rest of the world but if it doesn’t satisfy the above mentioned two conditions of natural law, its very purpose is defeated.
On 11th June 2014, the Prime Minister of India, Shree Narendra Modi, in his 1st speech in the Lok Sabha said-“We need to change scam India image to skill India”. This euphoric declaration by the PM is itself a testimony to the statement given by Chief Justice of India that govt is the single largest litigant today. Can a litigant have any say in the appointment of Judges? Does it not defeat the very fundamental principle of Natural Justice? I leave it to the wisdom of the readers to decide if the government can have any say whatsoever in the appointment of Judges amidst a time when total sum of money involved in all scams has the potential to beat the annual budget of Govt of India on annual basis.
Having decided the morality whether government can have any say in appointment of Judges or not, morally and rationally, let’s try to find out what our constitution and Constitution makers say on this issue. There was a committee set up to draft Constitution known as “Constituent Assembly of India”. It used to be chaired by Dr Rajendra Prasad, the President of India. On 24th May 1949, this very issue of Independence of Judiciary was discussed among the members of Constituent assembly comprising of eminent lawyers who laid the foundation stone of this country once it became Independent.
Here is what Dr B.R Ambedkar, a man who needs no introduction, had to say -“With regard to this matter,I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States.
It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United State, (it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day) Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations.
The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment”. It has to be further noted here that Dr Ambedkar had also said that Govt was litigant in only 5% of the cases. Today, this 5% has gone up to 60%. [Accessed]
What did Constitution finally say about appointment of Judges of Supreme Court?
Clause-2 of Article 124 that relates to the appointment of Judges of Supreme Court says-“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 for the purpose and shall hold office until he attains the age of sixty-five years”. Does it not ensure Independence of Judiciary? When the Constituent assembly comprising of brightest of stars of India’s freedom movement had extensively discussed the issue of independence of Judiciary, would it not have said-“President, in consultation with Prime Minister or Council of Ministers” would appoint Judges of Supreme Court?
Apparently, the makers of Constitution were very confident of India becoming a “Scam Country” one day and government being the biggest litigant. Hence, they removed the clauses that were there in the Constitution before India’s independence under British Rule which would give Executive the power to appoint Judges & deliberately changed it to make Judiciary independent of Executive. Article-50 of the Constitution 1949, a directive principle, talks about separation of judiciary from executive and explicitly states that the State [India] shall take steps to separate the judiciary from the executive in the public services of the State. Though directive principles are not legally enforceable by law but it provides the guidelines for framing laws and policies and apparently, the new NJAC violates this.
Thus, by now, we have addressed two fundamental questions:
1. Can Executive [Ministers and Parliament] have a say in appointment of Judges?
2. Does our Constitution talk of giving executive any “say” in appointment of Judges?
Were Constitution makers unaware of this and did they deliberately not add-“In consultation with PM and Council of ministers” in the Article-124 that deals with appointment of Judges? The next important question in hand is-“Is the power of Parliament to amend the constitution unlimited”? As I do my research on this topic, I feel so satisfied and so proud of my Constitution makers that I fall in love with my country. The Parliament cannot, even if it has 2/3rd or full majority, make laws that are absurd and any law made by it will be subject to scrutiny of Judiciary.
So, is Judiciary the final word in India? No, the Judiciary has to act as per guidelines provided in Constitution. And, Judiciary is the final authority in “interpreting” any law. The Supreme Court website reads-“The law declared by the Supreme Court is binding on all Courts within the territory of India. It has power of judicial review – to strike down the legislative and executive action contrary to the provisions and the scheme of the constitution, the distribution of power between Union and States or inimical to the fundamental rights guaranteed by the Constitution.” [Accessed ]
Thus Indian constitution is not fully sovereign. It can make amendments for the smooth functioning of system only as long as it doesn’t violate the fundamental rights of citizens and is in line with the basic structure of constitution. What is meant by basic structure? For example, if the Parliament decides today that Chief Minister of the Karnataka will have to work under Prime Minister just like his Cabinet ministers do, it will be against the basic federal structure of India which says that states will have a Chief Minister who will be independent in his official capacity.
Now, let us come to the problem in hand—“Appointment of Judges, collegium system and NJAC”.
From 1950 to 1981: When Judiciary was Independent on Record
Judges of Supreme Court would be appointed by the President of India in consultation with Chief Justice of India who would consult senior colleagues of Supreme Court before recommending the name of anyone for elevation to the post of Supreme Court Judge. Thus, Executive did not have any say in judicial appointments. Did this system work? Following events will help us Judge:
• In Golaknath Vs State of Punjab case, in 1967, Supreme Court trashed “Punjab Securities and Land tenures act” that denied people of acquiring and holding property, a fundamental right of any Citizen. In other words, had Judiciary been compromised and subordinate to Govt, people in India might not have rights to acquire property beyond a minimum level fixed by Govt. Being independent, it forced the govt to adhere to law of land and protected citizens of India. [Accessed ]
• Nationalization is the process of taking a private Industry or private assets into public ownership by a government. On 19th July, 1969, the Govt of India led by Indira Gandhi nationalized 14 banks by Banking regulation Act and infringed upon rights of shareholders of Directors of banks. Rustom Cavasjee Cooper, Director of Central bank of India, challenged this case saying that it violated his own fundamental rights guaranteed in Article-14, 19 and 31 of Constitution.
Supreme Court trashed this sinister act with 10 of 11 judges finding that the Act had violated Constitution and protected not only an ordinary citizen but also banks, acting independently against the government. [Accessed ] The only Judge who found that Govt had not violated Constitution was Justice Ajith Nath Ray.
• Before independence, India was divided into princely states and they were free to decide whether to accede to India or remain independent. But, this accession, led by Sardar Patel, came to Government of India on a mutually agreed term that provided them to retain their titles and also granted them privy purses free of taxes. In 1970, the GOI led by Indira Gandhi abolished Privy Purses. Madhavrao Scindia challenged this case and Supreme Court trashed it with a majority of 9 out of 11 Judges thus protecting the rights of erstwhile royals and keeping the promise of Patel on behalf of GOI. The two Judges who found the decision of Indira Gandhi legal were Justice Ajith Nath Ray [again] and G.K Mitter. [Accessed]
• In 1971 election, Raj Narain had fought election against Indira Gandhi from Rae Bareilly constituency. He lodged a case against Indira Gandhi for election malpractices in the Allahabad High Court. The hearing of the case went for many years. [Accessed ]
• In 1973, Kerala government tried to usurp the property of “Edneer Muth” by introducing 29th Amendment Act . Kesavanand Bharati challenged this saying that it was direct violation of fundamental rights of the “Muth” to manage its own property. This case, then, again re-iterated the question of government’s rights to amend constitution. The case was heard for 68 days and a book is being written on this historic judgement. The Supreme Court, headed by Chief Justice Sikri and 6 other Judges of total of 13 who heard the case, then, decided that Parliament can make any amendment so long as it doesn’t violate the basic structure of the Constitution. Of the Judges who disagreed and held that Govt had all rights to make any amendments in Constitution, one was Justice Ajith Nath Ray [again]. [Accessed ]
• On 25th April 1973, Justice Ajit Nath Ray, the Judge who consistently gave verdicts in favor of Indira Gandhi led government by betraying citizens of India was elevated to Chief Justice of India superseding 3 Supreme Court Judges- Manilal Shelat, AN Grover and K.S Hegde who were senior to him and all of whom had given verdicts against Government. There was a nation-wide protest by lawyers all over India.[Accessed ]
• On 23rd May 1975, the case of electoral malpractices against Indira Gandhi was concluded and the 258 page Judgement was pronounced on 12th June 1975 by Justice Jag Mohan Lal of Allahabad High Court. Justice Lal declared Indira Gandhi guilty of corrupt electoral practices and disqualified her from contesting elections for the next 6 years. An anecdote worth mentioning here is that the day when Mrs Gandhi was to appear in court, he had asked people assembled in court not to rise when Indira Gandhi comes to the court and display undeserved respect in the court room where only the Judge was worth that courtesy. [Accessed ]
• Following Allahabad High Court Judgement, she appealed to Supreme Court for stay on order till her prayer of reversal of order was heard. The Supreme Court stayed the order but asked her not to take part in parliamentary proceedings. Thus, she was left with no other option and within 13 days, she declared emergency and throttled the fundamental rights of people of India given by Constitution by bringing 42nd Amendment act that clearly made itself immune from any Supreme Court or High Courts’ fears. The Parliament then amended the electoral law and Indira was exonerated. During emergency, from 1975-1977, proposal for transfer of 56 High Court Judges ere made and 16 of them were transferred because of unfavorable decisions given by them against Mrs Gandhi. Not only that, 8 new Judges leaning towards Indira had been appointed to Supreme Court. [Accessed]
• After 2 years of dictatorship, election was held. Janata Party came to power under Morarji Desai and the new Govt helped restore back the power and Independence of Judiciary. In 1979, Janata Party govt fell and new elections were held and Indira Gandhi came back again.
• In 1980, hearing the case of Minerva Mills, a private limited textile company that had been usurped by GOI by Industries Development Act, the Supreme Court once again re-emphasized on that Parliament cannot change the basic structure of constitution and it struck down several clauses added by Indira Govt during emergency time. [Accessed]
Let us pause here for a moment and find out if judicial independence will be good for the country or bad? Can we, given the circumstances above, dare to have “Executive” decide who will be the Judge who will listen to billion-dollar scams? I leave the answer to the wisdom of the readers. Let’s explore how things unfolded after this.
• First Judges Case: After Judiciary was abused consistently by Indira for more than 10 years and after repeated efforts to usurp fundamental rights of people and Institutions, many concerns were raised on clarity over appointment of Judges and also transfers. In 1982, the Supreme Court consisting of 7 judges decided unanimously that appointment of the Judge needs “consultation” of the Chief Justice but “consultation” doesn’t mean “concurrence” and hence these appointments can be made by recommendations of Governors also. In case of appointment of High Court Judge, Article-217 permits consultation with Governor. Since a Governor is usually a proxy of the Govt at the center, it indirectly gave executive the upper hand in appointment of Judges of High Court and also in appointment of Supreme Court Judge who is mostly a High Court Chief Justice. In this regard, what needs to be noted is that most of the Judges who pronounced this Judgement were handpicked by Indira as already illustrated above. This process continued till 1993. It was known as First Judges case.
• Second Judges Case 1994: This case was heard by 9 Judges. In it, the Supreme Court restored its primacy on two grounds: 1. Influence of executive on Judiciary needs to be eliminated 2. Since a Chief Justice is the best person to comment on suitability of Judges, his opinion will not only have primacy but will be determinative. The process proposed was that the Chief Justice and two senior most Judges will suggest the name to the President for appointment of Judges.
• Third Judges Case 1998: The third Judges case came when the President of India asked the Chief Justice clarification on “consultation” term as defined by the “Article 124” of Constitution. The Supreme Court replied that “Consultation” doesn’t mean consultation only with Chief Justice but with plurality of Judges. It maintained all the findings of “Second Judges Case 1994” and extended the number of judges to be consulted from 2 to 4. This, team of Chief Justice of India and his 4 senior most judges is known as “Collegium” today and at the time of writing this article, Judges are being appointed by “Collegium” system only. Though the NJAC bill is passed but it is yet to come into effect.
Problems with Collegium system:
• The appointments are completely on the discretion of Collegium. There is no proper guideline for evaluation of these appointments. The Collegium may appoint someone with excellent knowledge on Law but lacks in integrity or otherwise or both. Its all left out on collegium on a case to case basis.
• Zero transparency. No one gets to know why Mr. X is elevated to Supreme Court and why Mr Y and Mr Z were not elevated.
• Quite often, relatives of Supreme Court Judges who are in High Courts get elevated. Since the Collegium is unquestionable, nothing much can be done.
• Professional grudges.
• Problem with operational efficiency of these Judges. Being full time Judges, they don’t get enough time to assess any Judge for promotion and most of the High Court’s always have vacancies pending round the year.
Proposed NJAC Bill
• The NJAC will replace the Collegium system. The NJAC will consist of 6 members: Chief Justice of India, two Supreme Court Judges, Law Minister of India, two eminent persons.
• The two eminent persons will be appointed by CJI, Prime Minister and the leader of Opposition.
• If 2 of the 6 members oppose a name, then it should not be recommended.
Questions on NJAC
• In short, does this NJAC even tangentially touch the question of transparency and accountability? Or, does the government want us to believe that changing the people in committee from Judiciary to executive will make Judiciary an ocean of integrity?
What are sinister things about NJAC?
• It doesn’t even remotely talk anything about “transparency” and “accountability”. Where is the clause that tells us about the “criteria” on which Judges will be evaluated? How do we know that Mr X who is elevated to the Supreme Court is a man of Integrity, has excellent grip on law, has delivered judgements impartially without being influenced by any kind of pressure etc? How do we know when did NJAC post a vacancy and who all applied for the post? How can we get to know about their resume? How do we know how, out of 10 Judges who applied for the post, the one who was selected was better? Or, is it the sole discretion of NJAC to take a call out of its own wisdom on who all will fit for the post?
• What will be the pay scale of these people? How do we know that the NJAC members will not appoint their own near and dear ones in Judiciary? Do they give any declaration beforehand? How will NJAC handle a case when a bright candidate to be considered for the elevation happens to be the relative of 1 of 6 members? How many days in a year will NJAC work? Infosys took more than 2 years to decide its CEO.
Can NJAC decide appointment of a post for which there had been so much of dance and song within a few hours?
• If a HC Judge has delivered a verdict against the government, with minimum two members coming from Govt side- an eminent person and a law minister- will NJAC ever let him reach to Supreme Court? How is this question being handled? It violates the basic structure of Constitution that talks about Independence of Judiciary. The Drafting Committee had extensively debated over the issue of Independence of Judiciary and had deliberately kept Executive away from appointment of Judges. The basic structure diagram is in accordance with the idea of founding members of our constitution.
• Last, once this bill gets passed and has the seal of Supreme Court(God Forbid), it will be impossible to remove it. Imagine a scenario when we have a Mulayam Singh as Prime Minister and Mayawati as Leader of Opposition, how holy will the NJAC team selected by these guys will be can be estimated by random selection of any news from UP today.
What are the lies being propagated about NJAC?
• Biggest lie being propagated about NJAC is that Judiciary has usurped appointment of Judges. Over and over again, self-styled pundits are propagating that it was Executive that always used to appoint Judges and only for the last 20 years, its Collegium that is appointing. However, as we have seen above, we know that from 1950 to 1980, Executive had technically zero say in appointments. Yes, zero.
• Another lie being propagated is that everywhere in the world Executive appoints Judges and hence we should also handover this appointment of Executive. First of all, this argument itself is pointless. Is it so that what works on “Mac” works on “Windows” too? Or, what works on iPhone works on Nokia? Secondly, besides being pointless, this is a lie. In UK, neither Executive, nor Judiciary have any say in appointments. Instead, they have an excellent system that is “transparent” and “accountable”. Read here for more info.
What is the solution?
• Let the NJAC be a full time working committee.
• Let NJAC be a “Judicial Audit Committee” like SEBI is for corporate sector and not an appointment committee. Does SEBI decide the CEO and MD of Infosys? Does it not ensure transparency by maintaining independence of Infosys? Just like that.
• Let NJAC be a completely independent body acting neither under the influence of executive nor under Judiciary with streamlined process to prepare yearly report cards of Judges.
• Let this NJAC audit committee put up all its findings on yearly basis on a portal and let Judiciary decide, based upon those report cards, who will be the Judge.
• The NJAC can, then, upon review of profiles and scorecards of candidates by SC Judges and President facilitate their interview and selection procedure.
Is it a coincidence that this bill addresses the question of “who will appoint the Judges” while the very purpose of bill was to deal with-“How will the Judges be appointed”? The intentions of this govt are sinister. I can only hope that Supreme Court, keeping in mind the basic structure of Constitution and principle of natural justice, trashes it.
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