If justice means that the public good be served, then the system of judges appointing themselves needs drastic revamping. The fact that the Chief Justice of India’s (CJI) choice as to who should or should not be elevated as a high court or apex court judge may not always be inspired by divine wisdom is proved by the Narendra Modi government negating the recommendation of Justice Gyan Sudha Misra as head of the Smuggling Activities and Foreign Exchange Manipulators Act tribunal because she allegedly habitually came late to court.
Controversies have always beset the judiciary and now the Supreme Court will have to decide whether to substitute the present system of judges appointing themselves by a panel of six experts or strike down the 99th Constitution Amendment Act which led to the enactment of the National Judicial Appointments Commission (NJAC) Act, 2014, to preserve its monopoly in judges appointing themselves without being accountable to the people. The NJAC Act has been ratified by 16 states.
The NJAC consists of a six-member panel comprising the CJI with two senior most judges, the Union law minister and two eminent persons to be nominated by the CJI, the Prime Minister and Opposition Leader in the Lok Sabha. The apex court has sought a definition of these two “eminent persons” whose background may not facilitate their deciding who is fit to be elevated as a judge or not.
Judges of the Supreme Court and 21 high courts are sworn to uphold the Constitution and statutory law irrespective of the vagaries of changing political ideology. This was not the case in the 1970s when Indira Gandhi espoused the cause of a “committed judiciary” to further the policies of the Executive.
This had a sequel in the judiciary formulating the doctrine of judicial overreach where judges neither negate executive policy nor invalidate laws made by the legislature without grave reason. The law banning beef in Maharashtra is a case in point because although this is a clear-cut example of the Executive deciding what those living in Maharashtra should eat, the Bombay high court has not yet struck down this law.
During the Emergency, a five-judge bench headed by A.N. Ray opined in the A.D.M. Jabalpur case (known as the habeas corpus case) that life was a gift of the state which it could take back at its pleasure. Decades later, the doctrine of judicial restraint made judges cautious about striking down laws which invade fundamental rights on the reasoning that the legislature represents the wishes of the people.
But the judiciary is the last bulwark for citizens and esoteric legal doctrines may transform justice into an abstract chimera for the poor. The fallacy in the reasoning that judges know best who will become a good judge or not, is proved by former Union law minister Shanti Bhushan alleging in an affidavit filed in the apex court in 2010 that eight out of 16 CJIs whose credentials he knew, were definitely corrupt while the other eight were honest and no definite opinion could be formed of the remaining two.
Former CJI K.G. Balakrishnan was under a cloud for his near relatives having allegedly amassed wealth while his successor CJI P. Sathasivam flew from Kerala to Delhi to attend the wedding of BJP leader Amit Shah’s son, raising eyebrows. Justice Sathasivam vehemently denied in public that the BJP had made him Kerala governor because he had quashed the second FIR against Shah in the Tulsiram Prajapathy encounter case, which is definitely true. Former chief minister of Himachal Pradesh Vijay Bahuguna allegedly resigned as a judge from the Bombay high court after the lawyers threatened to boycott his court.
And so we are left with the question as to whether the Executive and Legislature should have a say or not in appointing judges to the superior courts. Outside India, the U.S. Senate has to confirm the appointment of federal court judges (called high courts and Supreme Court in India) while in Australia and New Zealand too, the Executive has a say in judicial appointments.
This does not mean that our Executive and Legislature will not induct their own “committed” lawyers into the judiciary. But as time has shown, when judges appoint themselves, the results are not always laudatory. This is why the system of checks-and-balances is woven into the Constitution to ensure that one arm of the state does not wield absolute power, appoints itself and is not accountable to the common man whose sovereignty is espoused by Parliament.
The legislature has a say in appointment of the President of India, while the Executive plays a major role in appointing governors of states. There can be no conceivable reason why the Executive and Legislature should not have a say in appointment of judges to the high courts and Supreme Court which is what the NJAC seeks to do. In any case, this is an experiment worth the expense because if it fails, it can be abrogated by the passage of a Constitutional Amendment (Repeal) Act although this will require the consent of all political parties which is difficult to obtain.
