There might a hint of logic to Union Finance Minister Arun Jaitley’s strong reaction to the five-member bench verdict of the Supreme Court striking down the National Judicial Appointments Commission (NJAC) Act. Jaitley, without mincing words wrote in his blog that Indian democracy could not be a “tyranny of the unelected”. The sum and total of the minister’s argument is that the judgement upheld the primacy of one basic structure “ independence of the judiciary “ but diminished five other basic structures namely parliamentary democracy, an elected government, office of the prime minister, council of ministers and an elected leader of the opposition. There is merit in the argument made by the minister, but this might not necessarily mean that the NJAC was flawless.
The collegium system, which has functioned for two decades or so and was the result of two judgements and a reference by the President, empowered the Chief Justice of India to make judicial appointments within a framework constructed by nine principles laid down by the apex court. The system was certainly independent but it was also opaque and gave way to a lot of questionable decisions which eventually forced the central government to intervene through NJAC. The act, which now stands struck down by the apex court envisaged a committee comprising the CJI, two senior judges of the Supreme Court, the Union Law Minister, two imminent persons to be appointed by another panel comprising the CJI, Prime Minister and leader of the opposition. Any two persons in the panel could veto a decision.
The panel set up for appointment of judges under NJAC is a balance between the judiciary, executive and society. Of the six members, three are judges and it is difficult to understand how a panel of this composition could undermine the independence of the judiciary? It seems that the basic premise of the verdict is elected representatives cannot be trusted to maintain the independence of the judiciary and this function would have to be undertaken by the judiciary itself. Also since the government is the largest litigant, it cannot be allowed to interfere in the process of appointment of judges.The inherent flaw in this premise is that it belittles the office of the prime minister and leader of the opposition in the Lok Sabha, as pointed out by Jaitley.
The judiciary needs to be independent, but it also has to be accountable. The question is to who? Parliament is accountable to the people as representatives go back to the people to seek their mandate. In a way, the judiciary is accountable to Parliament as the scheme of the Constitution allows impeachment of judges, which to the credit of elected representatives was undertaken only in very rare cases. The prestige and honour of the judiciary flows from its judgements and delivery of justice, but for this to happen on a regular basis the process of appointment of judges must be above board. If NJAC is seen as tilting the balance in favour of the executive, then the collegium is a system without any accountability and this is the precise reason why it has become opaque.
While the judiciary acts as a bulwark against political dictatorship, does any system exist to prevent judicial over-reach? The verdict has raised several perplexing questions and one of them is, has the apex court arrogated to itself a power not envisaged in the Constitution? Parliamentary democracy is a balance between the judiciary, legislature and executive and should the balance tilt in favour of any one of the three branches a form of authoritarianism is likely to develop, with serious consequences to the nation.
