By Vijay Darda | 19-10-2015
Last week a five-judge bench of the Supreme Court with a 4-1 majority delivered a momentous judgement. It made headlines and a message got conveyed that the court’s verdict was a setback to the government’s efforts to change the way in which the judges to the Supreme Court and the high courts are appointed. This indeed is the right conclusion and there is no confusion about this message. The government’s plan to set up a National Judicial Appointments Commission has been held as unconstitutional.
However, looking ahead the more important message from the judgement is that all the five judges agreed to consider suggestions for improving the functioning of the 22-year-old collegium and have fixed November 3 for hearing arguments on this aspect. The Supreme Court has thus accepted the case for judicial reform, and it is a big step forward.
Let us accept at the outset that the independence of the judiciary is simply non-negotiable. The people’s faith in the judiciary as the ultimate arbiter of all disputes in the land is the basis for the smooth functioning of the entire system. A key element in this trust is the mechanism for appointing judges. As long as this system remains credible and independent, the faith in judiciary thrives. Now the judiciary while rejecting the NJAC has adjudged it to be an imperfect alternative. It has seen the NJAC as something that shatters the basic structure of the Constitution and has given elaborate arguments in its judgement.
However, when the Parliament unanimously passed the Constitution amendment and the NJAC (that have been struck down as unconstitutional) it was motivated more by the desire to reform the collegium system, than with anything else. In this context, observations of Justice Kurian (who was a part of the majority judges striking down the NJAC) are worth quoting: “All told, all was and is not well… collegium system lacks transparency, accountability and objectivity,” he observed, and added that “the trust deficit had affected the credibility of the collegium” with deserving persons being ignored wholly for subjective reasons and certain appointments being purposely delayed.
After this critique from a Supreme Court judge it needs no other certification that the collegium system is indeed imperfect. It has to change. But it must also be emphasized that apart from this imperfection the other problem is that there is no mechanism in place to fulfil the needs of two other expectations from the judicial system voiced by Justice Kurian and also felt extensively by the people. These pertain to the ‘accountability and objectivity’ of the judiciary.
It is well accepted axiom that no man can be a judge of his own case and the same would apply to the judges of the higher judiciary. Whereas they sit in judgement on every other arm of the entire constitutional edifice (the power to review the decisions of the high courts and the acts by the legislature and the executive vests with them) there is no mechanism to assess their accountability. In the interest of equity and fair play they cannot be arguing that they are beyond the scope of any review and accountability.
So, should the Supreme Court judges in their considered wisdom and based on their experience evolve a system that makes them accountable in a transparent manner, and promotes an assessment of their objectivity (like a set of former chief justices reviewing select judgments delivered by them) then the entire judicial system would stand to gain. It is safe to assert that such a mechanism does not exist at present, and it creates its own set of problems, that are best known to the judges themselves.As a parliamentarian, I can assert that there is no point in reaching a situation which can even remotely be described as a conflict between the legislature and the judiciary because such a turn of events would cause incalculable harm to our democracy. Indeed, the need of the hour is to find a quick resolution from the current stalemate.
Pending the adjudication on the constitutionality of the NJAC, all appointments to the high courts and Supreme Court have been on hold for the last several months and the system is feeling the cumulative impact of this delay. It is estimated that 40 per cent of the posts (around 400 in all) at the high courts are lying vacant, and there is no clarity on whether these would be filled up by the collegium system as it stands, or as it would possibly emerge after the apex court firms up its view? The problem of huge pendency of litigations at different levels is something that has been debated ad nauseam, and it is a sad commentary on the functioning of all the elements of the judicial system that the people are not able to get their disputes adjudicated for decades. From a people’s standpoint, it must be asserted that the cliché – justice delayed is justice denied – cannot be allowed to become a way of life. This is simply unacceptable, and there should be an element of accountability as well on this count. Even as there is a collective responsibility to improve the overall speed of the justice delivery mechanism, those individually responsible for delays beyond a point must be held accountable. Or else the desired change would remain elusive.
It could be tempting to argue that judges being humans after all, have been guided by the instinct to protect their turf in rejecting the NJAC. But that would be missing the point, as the legal challenge to the NJAC was mounted by several senior advocates who are also critical of the collegium system. Indeed, the critics of the NJAC are also critical of the collegium system. The need is thus to evolve a system that is devoid of the imperfections of both the systems. It is not such a difficult task and is well within the grasp of all the well-meaning and brilliant minds that stand collectively for the right balance among all the pillars of our democracy – legislature, the executive, the judiciary and of course the media.
Before I conclude…
The BJP-Shiv Sena coalition government in the state has begun to look more like a marriage that is marked by daily dose of disputes. The partners keep sniping at each other, without taking the final parting step. Chief minister Devendra Fadnavis has assured that his government would last the full term, and knowing that power is indeed the most powerful cementing force it seems unlikely that the Sena would walk away from the government, and lose its clout. Besides, Sena knows that its place would remain vacant for long and the loss if any would be entirely theirs. However, everyone knows such internal spats do not make for a petty picture and the state does suffer in the process. The loss is much bigger than merely missing an evening with ghazal singer Ghulam Ali playing his tributes to the late Jagjit Singh.