Just when we were grappling with the recent 64.71 percent takeover of NDTV, a pioneer in India’s news television and digital journalism, by Adani, we are again flapped with a tussle between the executive and the judiciary over collegium vs the National Judiciary Appointment Commission (NJAC). The government is proposing to replace the present collegium system (quorum consisting of CJI and four senior-most judges of the SC) with that of the NJAC (quorum of CJI, 2 senior-most judges of the SC, union law minister and two eminent person) on the ground of being opaque and other acknowledged flaws.
They are basically asking for the executives to be given a role in the appointment process for high courts, and the Supreme Court currently handled by collegium of judges. Though the criticism against the collegium system is no doubt something to be seriously pondered upon, the sudden aggressive campaign in the name of reform, which comes at the cost of the independence of judiciary by union Law Minister Kiren Rijiju seems dubious.
There are three organs of the government: the legislature, the executive, and the judiciary. The legislature makes laws, the executive implements them and the judiciary interprets them while upholding the spirit of the Constitution. Democracy works on the principle of checks and balances and it is these checks and balances that prevent democracy from turning into majoritarianism.
In a parliamentary system like India, both the legislature and the executive are closely intertwined, and in the absence of an opposition party (India is going through right now), it is the judiciary which provides the required check and balances. So, it is imperative that the judiciary remains independent.
Before the collegium system, till 1973, the senior-most judge of the Supreme Court was appointed as the chief justice of India. But in 1973, this convention was violated when Justice AN Ray was appointed as the CJI, superseding three other senior Supreme Court judges.
Interestingly, this comes at a time when the Supreme Court ruled that the Constitution can be amended by the Parliament but not at the cost of its basic structure in the Keshavananda Bharati Case, 1973. Coincidently, Justice AN Ray was one among the six judges in the 13-judge bench who dissented against the judgement and then, conveniently, the very next day got appointed as the CJI.
It is rumoured that he was given two hours to decide and accept the post of CJI. He was largely seen as a political appointee and the interference of executive is quite evident here. One of the major repercussions of such political appointment (executive interference), discrediting the independence of the judiciary, was the ADM Jabalpur case in 1976, where the majority of the judges (including CJI Ray) held that, with proclamation of emergency, and the subsequent suspension of enforcement of Article 21, no writ lies in court against detention of a person. Consequently, India is witnessing one of its darkest eras. After the retirement of CJI Ray, Justice MH Beg was appointed as the CJI, again superseding the senior-most judge of the court. Such instances led to a clash between the executive and judiciary, which resulted in three judge cases -1982, 1993 and 1998 – and ultimately gave birth to the present collegium system.
Even today, if we see, the judiciary is quite accommodative of the government’s concerns, such as the recent demonetisation judgment, the one rank, one pension scheme, and foreign donations for NGOs etc. So, the sudden attack is quite surprising and is quite telling of the government’s intention of wanting absolute control.
It is agreed that the collegium system is mired with nepotism, discrimination and lack of accountability, but the NJAC which the government is proposing, is like the pot calling the kettle black.
Mired in complete arbitrariness, the NJAC could sabotage the independence of the judiciary as guaranteed under the existing collegium system. Since the appointment of the two eminent members is completely up to the decision of the CJI and the executive and the executive being the largest litigator in the court could undermine the integrity of the CJI. The NJAC is more like old wine in new bottle; the only difference is that the government will be the one tossing the bottle.
With the government aggressively trying to increase its role in every institution, be it Bollywood (the Cinematograph Amendment Bill, 2021), the appointment of CIC (Right to Information Amendment Bill, 2019), the recent ‘fact-check’ rules in the Press Information Bureau, uniform civil code, the judiciary should be left out of government control. Let the judiciary remain independent, which is a necessary essence of our democracy, or else the system of check and balance will get compromised and beauty of democracy will get distorted.
What we need is a transparent, independent and neutral mechanism that does not impinge on the independence of the judiciary, and this can only be possible if the executive and the judiciary could together find out a way.
As Dr BR Ambedkar famously said, “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 objects could be secured.”
Med 4th Semester,
Hills College of Teachers Education, Lekhi