Judicial wisdom should prevail

In democracy, one organ of the State acts as a check on the functioning of the other organ. So, any one organ of the State cannot claim itself an absolute independence from the influence of the other organ. This system of checks and balances is also intended to keep the organs of the State to know and confine within their respective limit. This principle is also applicable in the matter of appointment of judges to the Constitutional Courts.

Recent events had pointed to a kind of attack on the judiciary with the executive putting pressure on it to drop its functions as a selector in judicial appointments. This is also a part of the general trend seen of a building defiance of the top court, which over the years has picked up this positive image of being the dispenser of justice in absolutely every facet of governance.

In theory, it may not be nice to vest the power of appointing judges in the hands of the brother judges. But, in the Indian context, it is the only viable option we have in order to maintain the independence of the judiciary, which only would service and sustain our democratic setup. In this context, the Government began making the point that in the matter of appointment of judges to the Constitutional Courts, the judiciary cannot act as an absolute master and that it should have an equal role in the process.

On the ground of maintaining the independence of judiciary, the Supreme Court had, however, rejected this plea and asserted that only the judiciary would have an upper hand in the matter of appointment of judges and the Government could not have any major role in it. This controversy regarding the role of the judiciary vis a vis in the matter of appointment to the judiciary is continuous and never ending.

If we see the constitutional developments in the country during the past 66 years, we can see a remarkable shift in the understanding and interpretation of the provisions of the Constitution. It is highly influenced by some events which shocked the conscience of the right thinking citizens.

At the initial stage of the working of the Constitution, both the State and the Central Government had a predominant role in the appointment of judges. This predominance saw the appointment of politically oriented persons as judges and their philosophy influenced the understanding of our Constitution. But, in due course of time, this predominance was misused by the Government to intimidate the independent judges and also influence them for getting favourable decisions with a carrot and stick approach. This led to a rethinking on the understanding of our Constitutional provisions.

The distrust of the judiciary towards the politicians and the instances of abuse of their Constitutional power to continue in the saddle of power forced a rethinking on the part of the judiciary which led to the introduction of the collegium system in the appointment of judges. It enabled the top three judges of the High Court to decide the eligible candidates to the High Court and the top five judges of the Supreme Court to decide the eligible candidates to the Supreme Court.

Justice delivery is a specialised function and the persons entrusted with this function are to possess qualities like common sense, legal acumen, independence, fairness, honesty and integrity etc. The persons in Government are not in a position to observe the candidates for a fairly long period and decide the presence of these qualities in them. On the other hand, only the judges are having sufficient opportunity to assess the candidates.

Assessment of these qualities cannot be decided by conducting an examination. It can be done only by their continuous observation. Bravery, skill and presence of mind of the soldiers can be tested only in the field and not in the interview rooms. Similar is the case of the assessment of the candidates to fill up the post in the Constitutional Courts of the Country. So, only the judiciary is placed in a better position to select the prospective judges.

After recommending the names, the Government is also having an opportunity to vet these candidates. The input available in the hands of the Government about the candidates can be placed before the collegium of the Supreme Court. The Supreme Court gets the opinions of other judges who had worked in the concerned High Court and few other lawyers. All these inputs are studied by the Collegium in the Supreme Court and after such assessment it vets the list sent by the High Court. So, there are enough checks and balances in the system to prevent the misuse of power by the Collegium and also in enabling the selection of the best talented brain.

But, the occasional allegations and instances of favouritism which is opaque from the recommendations of the kith and kins of the judges and former judges and also the allegations of secretiveness in the assessment process led to the introduction of the NJAC Act. While the structure proposed in that Act for selecting the judges threatened the independence of the system, after holding it as unconstitutional, the Supreme Court had also recommended additional measures for introducing transparency in the matter of selection.

The appointment of various persons by the Government to various posts including the law officers, ministers etc has raised eyebrows regarding the quality of selection and the predominance of political considerations are there in these appointments. It itself is the best example to fortify our fear in the matter of selection of the judges in case the power is entrusted to the hands of the political executive.

The writer is a senior advocate and author of the book, Independence of Judiciary-Myth or Reality.