The collective might of the executive and the legislature could not overpower the judiciary in the long-drawn-out controversy over the National Judicial Appointments Commission (NJAC). On 16 October 2015, the Supreme Court declared as “unconstitutional and void” the Constitution (99th Amendment) Act, 2014, and the NJAC Act, 2014.
Thus, the executive was prevented from taking over the power to appoint and transfer judges of the Supreme Court and the high courts. The collegium system of appointing judges was retained. This system emerged from the second judges case (1993) and the third judges case (1998).
The fourth judges case of 2016, which involved the contest between the judiciary and the executive, endorsed the conclusions of the second and the third judges’ cases. Now, the intransigent attitude of the Narendra Modi government in defying the three judgements may well trigger another case, which would be a shocking outcome.
Refining Memorandum of Procedure
On 16 December, 2015, the SC directed the government to finalise the memorandum of procedure (MoP) for appointment of judges in consultation with the Chief Justice of India (CJI). While so directing, the SC recognised that the procedure followed in the collegium system needed improvement. Thus, the government was directed by the SC to refine the existing MoP so as to make it more transparent. The SC ruled, however, that the “process of appointment of judges by the collegium system need not remain on hold.”
Even eight months after the verdict, the MoP has not been finalised, thereby impeding the process of appointment of judges. It is clear that the government has not been able to digest its “defeat” in the SC. It is for this reason that the government is now raising issues beyond its ken through the MoP and proposing that a secretariat, comprising retired Supreme Court and high court judges (in the states), will process complaints against errant judges and recommend suitable measures.
Supreme Court’s Directives
The 2016 NJAC verdict had instructed the government, inter-alia, to finalise the procedure for dealing with complaints against anyone being considered for appointment as a judge, and not against any sitting judge. But the front page headline (August 1, 2016) in a leading national daily shockingly speculated (erroneously) to the contrary.
How can the government propose setting up a mechanism to deal with complaints against sitting judges in the apex court and in all 24 high courts through a limited mandate to finalise procedure for appointment of judges?
For any such proposal, and its implementation, there ought to be a constitutional amendment. There exists already a constitutional process for impeachment of judges of the SC and high courts. Articles 124(4), 124(5) and 218 of the Constitution are crystal clear in this regard. That such a process has proved ineffective is a different issue altogether.
Executive Encroachment
- Memorandum
of Procedure (MoP), document being prepared by the law ministry suggests a secretariat to deal with complaints against judges.
- Sole
objective of the MoP was to make the process of judicial appointments
transparent, with the SC acknowledging the need for transparency.
- Setting up a
panel to look into the issue of errant judges might be considered as an overreach
by the government.
- Examples
abound when the judiciary has thwarted attacks on the Constitution, most
famously when the Emergency was imposed in 1975.
- In this
context, suggestion of setting up a secretariat might boomerang for the Modi
government.
Constitutionally Mandated Remedy
The remedy then is to bring about constitutional amendments to these provisions and fix errant judges. No one can hold a brief for an errant judge. But the remedy must be mandated constitutionally, not by defying a judicial verdict. It appears that the government has taken the NJAC verdict too lightly.
India is passing through constitutional crises. The government is disregarding judicial verdicts of the apex court, in negation of article 144 of the Constitution, which stipulates that “all authorities”, “civil” and judicial in the territory of India “shall act” “in aid of the Supreme Court”.
The government’s design seems to tame and even perhaps to browbeat the judiciary. But this will not work today. It worked during the 1975 Emergency when, unfortunately , judges caved in. That dark chapter is over.
Forty-one years down the line, the judiciary has undergone a metamorphosis with senior judges thwarting every abuse of authority and every attack on the Constitution.
Government Must Stop Meddling
Recent judicial verdicts on Uttarakhand and Arunachal Pradesh bear ample testimony to the resilience, independence, and impartiality of the judiciary. The Modi government will be well advised not to meddle with the judicial process of appointment of judges, otherwise it may well boomerang. Instead, the government should deliver on governance, poverty alleviation, price rise, unemployment, crony capitalism. The government’s time is running out with 45 percent of its tenure consumed in pointless pursuits.
(The writer is a senior advocate, Supreme Court, and ex-additional solicitor general of India)
Also read:
Mr Jaitley, Drawing Judicial Lakshman Rekha is Fraught With Risks
CJI Thakur Wept Over a Problem of the Judiciary and Govt’s Making
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