Increasing inflation and a lack of public trust in an incumbent government linger as elections are announced. The results are surprising, not as to the victor but the scale of the victory. Some commentators term them a clear mandate for economic recovery and reform. Standing in the path of this legislative agenda is a Supreme Court that has the power to interpret a constitution and strike down legislation. Such negation comes with several positives that include judicial checks to protect constitutional freedoms. To protect against such setbacks, a popular, recently elected political principal starts an ambitious legislative plan to appoint judges to the Supreme Court who could secure it favorable rulings.
This has been the narrative that has been built around the recent National Judicial Accountability Commission (NJAC) but is more accurate in fact for another country in another century. The political principal is Roosevelt who has just been elected as the President of the United States on promises of lifting the economy from the great depression. Fulfilling them, a series of presidential orders and legislations are passed. Popularly referred to as the New Deal. Many come to be challenged and termed unconstitutional by the Supreme Court. In the face of such judicial opposition a bill is introduced to add more justices to the Court that are appointed by the President. Through such, “bench packing” judges sympathetic to the government could be appointed and favorable rulings could be obtained. This seems like a familiar script given the existing commentary focused on preserving judicial independence in India. However, it is inaccurate and premised on a flawed reading of the NJAC, our constitution and notions of parliamentary democracy.
The NJAC sought by a constitutional amendment to change the process for appointment of judges. Prior to the act, the Supreme Court had arrogated the constitutional provisions for appointment to itself. This was through the creation of a collegium, which consisted of the Chief Justice in conference with senior of the Supreme Court to appoint future judges. Without a clear basis in the text of the constitution as well as the constitution assembly debates. Through verbose reasoning the collegium was created and has been preserved. The Supreme Court became the sole and final arbitrator of not only law but also judicial appointments to the constitutional courts. With time there was a growing criticism of the collegium both as to its practice, implementation as well as its legal basis.
To reform it, the NJAC was introduced in parliament and passed with a rare majority. All members of parliament voted in its favor with only one abstaining from the vote. Coming from a parliament fresh from general elections this was an unequivocal and clear decision for categorical legal reform on judicial appointments. The NJAC sought to create a balance between the political executive, the judiciary and even civil society. It preserved judicial independence by not only having three of the six members as Supreme Court judges but also made the Chief Justice, the chairperson. The other three members would be the law minister and two eminent persons; the Government would select these two eminent persons with the leader of the opposition and the Chief Justice. Any two of its members could block recommendations for appointment. Though issues with clarity on its functioning and transparency were noticed, to decry the NJAC on grounds that it impinged on judicial independence only betrayed an absolute notion of independence, coupled with historical distrust.
These political facets are glaring in the constitutional bench decision that yesterday struck down the NJAC as unconstitutional. The majority opinions of the court primarily proceed on touchstones of judicial independence, a principle few would quarrel with. It is the extension of the principle through protracted reasoning to negate a parliamentary enactment, which is problematic. The bench in its opinion doesn’t restrict itself to a criticism of the defects of the NJAC but objects to it on principle itself. Underlying such legal analysis is a premise of judicial independence being absolute. The second major plank on which most of the reasoning is premised are the aberrations which resulted in the past before the existence of the collegium system. The collegium system came to be created from actual controversies where the political executive sought to subvert the independence of the judiciary.
While both these reasons seem plausible to strike down the NJAC, Justice Chelameswar’s dissent even with its restraint persuades otherwise. His opinion opens with a poignant paragraph questioning the hubris of the Court. He then surveys the law for the creation of the collegium, calling it, “a product of interpretative gloss”. On the second issue of anticipated aberrations and political interference eroding judicial independence, he faithfully documents how the court itself has itself departed from its prescribed norms stating, “when political branches cannot be counted upon, neither can the Judiciary.”. In more ways than one, his opinion is an article of faith in parliamentary democracy.
Preserving such trust is important given the Supreme Court has increasingly being viewed to exercise legislative functions. An expansion of its jurisdiction while restricting the process of appointment to itself does not behoove well. This puts it at the risk of increased tension with not only other arms of the state but also the public. It will increase not only criticism but also cynicism towards it. Erosion of public credibility is probably one of the few parallels which can be drawn from Roosevelt’s plan to pack the Supreme Court. Though many of his key legislations ultimately passed muster of judicial review, he withdrew the bill to pack the Supreme Court, politically weakened and publicly tattered. This same fate may await our Supreme Court if it persists with the collegium. Put tersely by J. Chelameswar in the end of his opinion, as a quote from Macaulay, “reform that you may preserve”.
Apar Gupta is New Delhi-based Supreme Court advocate. He tweets as @aparatbar