It is reminiscent of the days in law school, where recurrent question used to be “who is supreme as per the Constitution of India?” Answers would be President; as he could dissolve the parliament, Prime Minister; who enjoyed the highest legislative powers, Parliament; that could remove President and Chief Justice of India, Chief Justice; who administered oath to the President and debate would follow full circle with supremacy coming back to President. Teacher would have last say on Constitution of India after describing the checks and balances on the executive, legislative and judicial arms of the state!
Situation has not changed much ever since. We claim we are the largest democracy in the world. Our Constitution is based on three pillars. Legislature, Judiciary and Executive. Press voicing the feelings of citizens became the fourth pillar even though its role is not expressly so stated in the Constitution. Each pillar feels itself the most powerful without which others are incomplete. This is more as apparent with Legislature and Judiciary as the other two appear to be subservient to laws enacted by Legislature and enforced by Judiciary. Last week Supreme Court struck down new historic statute on NJAC (National Judicial Appointment Commission) framed recently by Parliament. NJAC was enacted by bringing 99th amendment to the Constitution. It was one of the rarest cases where both the houses of Parliament adopted the amendment unanimously. It is well established that democracy is practiced through a Government of the people, by the people and for the people! Government is formed by the elected representatives of people who also constitute the Parliament. Elected representatives are therefore law makers whereas Judiciary is all about scrutiny thereof. In business parlance, directors of the company run the business and auditors’ job is to audit and highlight deviations. What would happen to the company when auditors start running the business. It is the directors who are responsible to achieve desired results and not the auditors. One must spend considerable time with the public representatives to understand their action agenda to produce results as were promised to people while seeking election.
The way they intermingle with public, understand ground realities, understand the resources etc is eye opener on how challenging is the task to usher change for achieving desired outcome. This cannot be understood by sitting in AC rooms that too at five thousand feet above the ground! Secondly, they are answerable to public and therefore lawmaking task has to be kept with them alone. If they err in making law, they are there to face the consequences too when they go back to people for election.
NJAC was introduced to bring changes in the existing collegiums system of appointing judges. Presently, judges are appointed by collegiums consisting of Chief Justice of India (CJI) and four senior most judges. It means only judges are the selectors. Whereas, NJAC provides for wider representation consisting of CJI, two senior most SC judges, Law Minister and two eminent persons. Eminent persons are to be nominated by a committee comprising of CJI, PM and Leader of Opposition. What is wrong with this proposal? SC adjudged this amendment to be unconstitutional infringing basic structure doctrine. The doctrine does not allow any amendment which alters the basic fabric of the Constitution. The Supreme Court judgment raises many questions.
If we assume for the moment that collegiums system is better, then what is the scenario in judiciary? Can we claim that post collegiums system which was introduced two decades ago has provided all best of the competencies? Why 40 % of the posts are still vacant? Why disposal of the cases is at snail’s pace? Why decision of one Judge is contradicted by other Judge? Had not this country produced best of the judges like Krishna Iyar when collegiums was not in place? Who appointed the judges who saved Constitution of India in Keshawanandan Bharati case? If Judiciary performed post Independence period without collegiums, why can’t it perform similarly now? How judges can be considered to be expert in all the fields like social, economy, administration etc. Even in the selection panel for clerks, care is taken that experts from varied fields are chosen.
NJAC is well thought out amendment and has nothing to do with basic structure doctrine. What if similar amendment was brought for the appointments of Election Commissioners, CAGs etc. SC would have treated this as operational and administrative matter and would not have even admitted the matter for hearing. It is typically a case of establishing supremacy. Leave alone judges, in similar situation, in every walk of like, entire fraternity of the interest group unites keeping their internal differences aside, something like Islam in danger. Trade unions are seen to be hurdles by management. But they are there everywhere when it comes to protecting or promoting their interest. Any biological species, more so the mankind, by nature is power and privileges hungry. Look at professionals, Lawyers, Doctors, bureaucrats or Public representatives; they all have their own collective voices. No one would like to let go the power from their hands so may be the judges.
The major area of concern to SC in instant case appears to be the nomination of two “eminent” persons in selection panel of NJAC. This shows mutual distrust between Government and Judiciary. In fact such distrust between any two pillars alters the basic structure of Constitution. NJAC was the brain child of UPA which is taken to logical end by NDA that in a rather unprecedented manner generated unanimity across all political parties. The matter though is kept open on November 3 for further hearing. Legal luminaries too are pretty vocal in favor of NJAC. Be it may, every system cannot be proved to be flawless forever and thus requires revisiting time and again.