It is ironical that the principle of checks and balances, which is the bedrock of Indian democracy, has arguably been given a jolt by Supreme Court’s judgment striking down as “unconstitutional and void” the 99th Constitutional Amendment Act and National Judicial Appointments Commission (NJAC) Act 2014 on the appointment of judges. Consequently, the two-decade-old collegium system of judges appointing judges is back in full flow.
One holds no brief for the government of the day and of its predecessors, but the fact is that based on the principle of checks and balances, the judiciary has been an effective bulwark against abuse of power by the executive. The same cannot be said of the politicians as a whole who have done little to inspire confidence that their actions are above board. Yet, it is difficult to deny that the collegium system requires changes.
The higher judiciary has been fair in inviting the government to suggest changes to make the system more transparent, but the apex court’s rejection of the plea to refer the judicial appointments commission issue to a bigger bench has been a disappointment.
Whether the Modi government would back off from a confrontation with the judiciary, seeing that the principal party in the Rajya Sabha, the Congress, which had willy-nilly supported it on the NJAC, has decided not to extend support in future, is a moot point.
But the anger in the government is palpable. Attorney General Mukul Rohatgi called the judgement “a flawed one ignoring the unanimous will of the Parliament, half the state legislatures and the will of the people for transparency in judicial appointments”.
Whatever be the pretensions to show that it’s business as usual, there is no doubt that relations between the executive and judiciary have touched the lowest ebb. The higher judiciary’s contention that in the appointment of law officers and state counsels in various states, the politicians have shown a tendency to pack their own men and that they can hardly be trusted to partake in appointment of judges with impartiality is weighty. Yet, that does not justify a system in which all powers to appoint judges may vest in the judiciary while excluding the executive.
If there are inadequacies in the composition of the panel to appoint judges under the collegium system, those must be looked into so that the primary responsibility for selection remains with the judiciary. As it is, resentment over there being no effective mechanism to check and punish corrupt judges has been growing. The procedure for impeaching a corrupt judge is so cumbersome that those with a taint get away without any scrutiny. It is small wonder then that not a single judge of the higher judiciary has been impeached to date.
Mercifully, corruption in the higher echelons of the judiciary is still not endemic, but the system has to prepare for all eventualities and it can hardly be dismissed that with society being so utterly permeated with corruption, it may be a matter of time before corruption seeps into the vitals of the judiciary. It is no secret that the lower judiciary no longer conforms to the incorruptible tag which some years ago was its hallmark.
All in all, while the politicians in the country lack the moral authority to point fingers at judges, it is unwise to insulate the judiciary from public accountability.
k.kamlendra@gmail.com
Kanwar is a former journalist