Sharpening the contradiction between the government and the judiciary, CJI hief Justice of India T.S. Thakur reportedly rejected on Sunday the official proposal that a committee of retired judges be set up to evaluate the applications for appointments to the higher judiciary. The CJI’s reasoning is not in the public realm, but the conclusion he has reached does not appear whimsical. Retired judges, if appointed under government auspices, cannot be considered independent. They may not be be above factions within the judiciary, or for that matter nepotistic interest, and may not be imbued with the quality of disinterest when commenting on applications for appointments to the higher judiciary.
A democracy needs a truly independent — and accountable — judiciary. The notion of an independent judiciary is part of the “basic structure” of the Constitution, which renders the precept inviolate. To begin with, in India, the government appointed high court and Supreme Court judges in “consultation” with the CJI. This era produced a judiciary “committed” to the government of the day. The pendulum swung the other way in 1993 when the collegium system was created under which judges appointed judges. This led to a lack of transparency, misuse of powers, and nepotism.
A middle path needs to be urgently found as crores of cases are pending in our courts, including at the appellate level. The present government brought the National Judicial Appointments Commission through an enactment and constitutional amendment. But this was inherently flawed. Besides the CJI and two apex court judges after him in seniority, the NJAC has as members the Union law minister and two eminent persons chosen by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition.
The worst aspect of it is that members of the panel were given veto powers, which means the law minister could throw out any name sent to it from the judicial side. Besides, since the government is the biggest litigant in India, it is inappropriate to have the law minister on the panel to select judges as that is suggestive of a conflict of interest.
The NJAC Act was challenged in the top court and on October 16 last year, the Supreme Court held it to be “unconstitutional and void”. This verdict, incidentally, has the publicly enunciated support of the country’s most respected jurist, Fali Nariman, and eminent lawyer Ram Jethmalani, who believe that no shadow of the government must fall on the appointment of judges in order to ensure an independent judiciary. A further debate on how to create a truly independent body to make judicial appointments brooks no delay. It is also perhaps time that the judicial side put its cards on the table.
