~ By Raghav Pandey
In a democracy the ultimate citadel of power rests with the people. The government and its institutions derive their strength from its citizens and usually the agent of such delegation of power is a well drafted Constitution. The Legislature and the Executive in the Indian constitutional setup, hence derive their powers from the democratic mandate by virtue of being elected by the people. Other key institutions like the bureaucracy get legitimacy from the powers delegated to them by the executive.
It is pertinent to note that the judiciary functions independently, in accordance with Montesquieu’s theory of separation of the three wings of the government, namely, the Legislature, Executive and the Judiciary. The function which is earmarked for the judiciary is adjudication of laws but difficulty arises, because in many of the disputes which come up before the judiciary, the executive itself is a party. Hence, independence of judiciary is a crucial necessity for the healthy functioning of a democratic state. On the other hand, the executive has the democratic legitimacy to govern the country. Hence the judicial appointments have long been a subject of debate, as there has always been a need to strike a balance between democratic legitimacy and judicial independence. The United States (US) of America and the United Kingdom are amongst the two longest functioning democracies in the world and hence it is pertinent to examine their models of judicial appointments.
In the US, the method of judicial appointments is pretty straightforward, where the President of the US nominates the Supreme Court Justices, Court of Appeals Judges, and District Court Judges, who are then ratified by the Senate after along hearing. In this way the appointments gain legitimacy from a democratically elected head of the state, as well as from the upper house, where each state is represented equally. In this system a discernible drawback is that, the judge by the virtue of being appointed by the President may carry a bias in favour of the President and his party. The US Constitution seeks to get over it by appointing a judge for life, i.e. till he voluntarily retires or dies in office. This ensures that once appointed, it is virtually impossible to remove a judge, which allows him complete freedom.
In the UK,where the parliament was all supreme and the House of Lords was the highest judicial body for centuries, the system was changed in the year 2005 by the Constitutional Reform Act 2005, which established the Supreme Court,which formally started functioning in the year 2009.The function of judicial appointment in the UK is now performed by the Judicial Appointments Commission. The JAC consists of 15 members out of which 12 are selected through a transparent competition and 3 are judicial members.
The Indian situation is therefore quite unique in terms of judicial appointments. The Constitution under Article 124 (2) provides that “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary….” The word ‘President’ wherever mentioned in the Constitution is subject to the provisions of Article 74 which broadly provides that the President shall always act in aid and advise of the Prime Minister and the Council of Ministers and has no discretion to act in his personal capacity.
These provisions were dealt with by the Supreme Court of India in the following three cases – S. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case), Supreme Court Advocates-on Record Association vs Union of India – 1993 and in Re Special Reference 1 of 1998, collectively known as the Three Judges Cases. The combined effect of these three cases is the evolution of the collegium system. The Supreme Court interpreted Article 124 (2) to be independent of Article 74 and favoured the setting up of a collegium of Chief Justice and senior judges of the Supreme Court, whose recommendation were made binding on the President. This made the Indian Supreme Court the most powerful apex court in the world as it was totally independent of the other branches of the government, in appointment of its own judges.
This made Indian judiciary lose its legitimacy and connect with the popular will. In the absence of any accountability or transparency, the collegium system nurtured judicial nepotism and allowed the dominance of the bar. Article 124 (3) (c) of the Constitution of India empowers the President to appoint an eminent jurist as the judge of the Supreme Court,but ironically there has not been a single appointment to the bench of Supreme Court under this category because of the dominance of the bar,which leaves little room for a good jurist to serve the apex court of India.
It is pertinent to note that UK abandoned its 700 year old tradition by enacting the constitutional reform for the establishment of Supreme Court. It is hence imperative for India also to act in a similar fashion and enact similar reforms, so that the judiciary is not completely out of sync with the popular will. It is with this requirement in mind that the new National Judicial Appointments Commission (NJAC) Act was enacted. The Indian NJAC will have the Chief Justice of India as the ex officio chairman of the commission, along with the two senior most judges of the Supreme Court as members. The commission will also have the Union Law Minister as an ex officio member and two eminent persons to be appointed by a committee consisting of CJI, the Prime Minister of India (PM) and the Leader of Opposition (LoP).
The above model of NJAC is possibly the best suited for the Indian constitutional setup because it provides legitimacy, where in the PM, LoP and the Law Minister, all three responsible to an elected legislature, have a significant say, besides the Judiciary. In this system, while the judiciary provides the legal expertise, so essential in the case of a judge, the other three members represent the popular will and derive legitimacy from being appointed by the democratic government.
The Indian NJAC model is remarkably better than the models functioning in both the US and the UK. In the US, there is no effective say of the Judiciary, and in the UK the say of the judiciary is quite limited. The vision of the Government of India in enacting the NJAC is appreciable in terms of the perfect balance it seeks to strike between the judiciary and the executive as well as between legitimacy and independence. The NJAC when it becomes functional will present to the world a model which could possibly be replicated by many other budding democracies in terms of Constitutional practices and ethics.
Raghav Pandey is a Research Associate with India Foundation. The views expressed are his own.