These are testing times for the Indian judiciary, as it struggles to retain governance of itself. The NJAC case brought into sharp focus the division between the legislature and executive on the one hand and the judiciary on the other over the seminal issue of how, and especially by whom, judges to the High Courts and Supreme Court are to be appointed. Rebuffing the unanimity of Parliament and State Assemblies, 4 judges affirmed the decision of the Court in 1993 by which executive control was substituted by the collegium of the seniormost judges of the country. The Court declined to read down and modify the Act by which it could have retained substantial but not exclusive control. Faced with near universal criticism of the workings of the collegium, the judges then embarked on an unprecedented exercise of inviting suggestions for improvement from the populace. Presumably it can then be said that the reforms have widespread support. Significantly the government declined to join, perhaps not wanting to be coopted in this process and keeping its powder dry for another battle. The controversy is hardly settled.
The Court has held onto this power, but must improve its performance to retain it. In a reversal of roles, it is the judiciary which is now on trial.
The main criticism of the collegium process is its lack, rather absence, of transparency. To remedy this the Court will have to open out information on the procedure and criteria for appointment. There should be no secrecy about the names under consideration. The corollary is that a method should be devised to show that information in support of candidature is false or flawed, or that disqualifications exist, and these objections should be duly considered. The challenge here is to introduce transparency but also to ensure that the process does not become a free for all denunciatory game. A high level Screening Committee can go into the recommendations and objections, and of those making the latter signed statements should be preferred to anonymous charges. Suggestions for appointment need not come from senior judges only; other judges, the Bar and legal academic community as well as retired judges should also be able to come up with names for consideration. Reform should include widened participation. Although the Court in the NJAC decision has ruled against civil society being on the selecting panel, it should encourage its presence in the screening and recommendatory body. The involvement of the Law Minister should not be ruled out either; placing him as a permanent ex-officio invitee to the collegium will enable his views to be made known. Under the current Memorandum of Procedure the government can reject a name sent by the collegium, but if the latter reiterates it the appointment must go through. If this is to be retained, it ought to be accompanied by the requirement that both rejection and reiteration should be accompanied by reasons to be made public; if the two organs of State differ, we the people are entitled to know why a controversial name is going through. Other suggestions press for more representation for women, minorities and underprivileged sections. During the hearings, the Government flagged the issue of seniority being the dominant criteria thereby relegating merit to second place. All said, it appears that the path of change is difficult terrain.
A reformed collegium
One must wait to see what the reformed collegium system will be, and further wait to see if the process and results satisfy the Bar, other stakeholders and moulders of public opinion. Their support is crucial; judges by themselves cannot secure ground in the shifting balance of the constitutional division of power. If the Court succeeds, that will be a remarkable victory; it would have retained a power unparalleled the world over, and done so in the face of universal criticism of its exercise over several years. While the initial betting was not in its favour, two factors may now help it. One is the current acrimonious divide in the political class over many issues and the ruling party’s inability to move key legislation through Parliament. This will give the Court some time, but not too much; all parties are united in wanting to curb the judiciary’s hold over appointments and the replacement to the NJAC Act may well aid rapprochement between warring politicians. There is, however, another factor that has arisen, and that is the unease over the ruling party’s nominations to key social, cultural, educational, regulatory and other institutions of persons perceived to be closer to the party than to eligibility. This gives rise to apprehension, if not fear, of opening the judicial door to political influence. It was the distrust of politicians that drove the 1993 judgment, and if that major premise looms large again, public sentiment may prefer the relative safety of an unsatisfactory collegium which promises to reform.
This however is only part of the challenges facing the judiciary. Equal in importance to ensuring that good judges get appointed is the task of ensuring their good conduct thereafter. Earlier, the presumption of the honest judge precluded measures to check corruption. Sadly, no one presumes anything of the sort today, and yet corrective action, both institutionally and in individual cases, is lacking. Doubtful starters on the competence scale may improve, and indeed there have been several thankful surprises, but fallen integrity stays fallen. The Court should move quickly to restore confidence; inefficacy of in-house methods may lead to external ones.
To end on the note begun, the times are indeed challenging, but all challenges present opportunities. Our past disappointments should not preclude hope for the future.
(The writer is a Senior Advocate at the Madras High Court. His email is email@example.com )