By Striking Down NJAC, Supreme Court Reaffirms Self-Perpetuation

SC’s judgement has insulated the selection to Judiciary from Executive and Legislature, writes Mohan Guruswamy.

In 1993, the Supreme Court created the collegium system and tried to insulate the process of selection of judges. (Photo: iStockphoto)

The Chief Justice of India stands as a part of the Trimurti (the trio) consisting of the President, Prime Minister and himself, representing the Executive, Legislature and Judiciary. The only institution in the Trimurti that directly derives its legitimacy and power from the people is the Legislature, with the Parliament at the apex. The emphasis on the separation of powers is only to protect the other two pillars of democracy from the overweening and overriding of a rampant Parliament. But the separation of powers does not mean an entirely insulated existence either.

The selection of judges from the first days of the Republic was vested with the government. But in 1993, something akin to a coup happened, the Supreme Court created the collegium system and insulated the selection to the Judiciary from the Executive and Legislature.

Collegium Synonymous With Nepotism?

There is no mention of the collegium either in the original Constitution of India or in successive amendments. The collegium was the creation of the Supreme Court to arrogate to itself the right to choose other judges. The creation of the collegium was a reaction to the perceived indiscriminate transfer of judges, which was seen as an attack on judicial independence. The reaction of the Supreme Court was to completely oust the Executive from the selection of judges that, in effect, turned the judiciary into another self-perpetuating elite.

Recent judgement on the NJAC gives a sense that the court wants to oust the Executive completely from the selection process of judges. (Photo: Reuters)

India has become a nation run by self-perpetuating elites. Political parties are increasingly becoming family fiefdoms. The result of this creeping nepotism is that only 46.8% of the MPs have no prior political family connection. Three out of ten MPs (28.6%) are in politics due to family linkages. More alarming is that more than two-thirds (69.5%) of women MPs came into Parliament because of family connections. All MPs whose age is less than 30 years are hereditary and more than two-thirds of MPs aged under 40 are, likewise, hereditary.

A Lost Opportunity

• Separation of powers among the three pillars of democracy does not mean insulating one from another
• Even Supreme Court judges have come under the scanner in recent past
• Unlike India, the Executive participates in selection of judges in USA
• NJAC was an attempt to restore credibility yet retain independence of the judiciary

Institutionalising Aristocracy

One could even fault this: Our civil service is mostly from an elite layer of English medium private schools and colleges, being run mostly on government land provided gratis. Social class and connections largely determine entry into the civil services. Many of these institutions even have reservations for children of past students.

Those who go to one of these schools keep topping off the old school aristocracy and create a few new members of “people like us.” This aristocracy rather than becoming the bane of our lives and society is getting further institutionalised with vital institutions like the Judiciary too deciding to perpetuate these ways.

By keeping the power to appoint judges with itself, the Judiciary has institutionalised aristocracy. (Photo: iStock)

How the Supreme Court perpetuates itself is how the India International Center’s (IIC) Board of Life Trustees perpetuate themselves. A life trustee’s term is till the end of life. When the rare vacancy arises, the surviving life trustees meet to decide on who the next life trustee should be.

The only difference between the IIC life trustees and the Supreme Court is that judges retire. But like the IIC’s life trustees, new Supreme Court judges are chosen by those already in it and are in its “collegium of judges.” The collegium system has also given us a system based in chronology that determines the choice of CJI quite automatically. Judicial acumen, administrative ability and length of tenure have nothing to do with it. Consequently, we have had CJIs with tenures of just a few weeks.

Black Sheep in Judiciary

The judicial system is, to say the least, now a total mess. It is overcrowded with mediocre and corrupt judges. Even judges of the Supreme Court have not escaped opprobrium. More than one retired CJI is now being directly or indirectly investigated by the agencies. Recently, a former Judge of the Supreme Court, Justice Markandey Katju, well known for his outspokenness, made serious allegations against the incumbent CJI, Justice HL Dattu. How does one reform such a system, where tenures are limited and where promotion is only by seniority, without long-term institutional leadership?

The collegium system was not envisaged in the Constitution. Article 124 vests the power of appointment of the Chief Justice of India and the Judges of the Supreme Court in the President. It explicitly states that the President shall by warrant make the appointment after consultation with the judges of the Supreme Court and the High Courts of the States, as he may deem necessary.

This power is without precedent.

In USA, the President initiates the appointment to the Supreme Court and recommends a candidate for the Congress to approve. (Photo: iStock)

Court’s Overreaction

In USA, the President initiates the appointment to the Supreme Court and recommends a candidate for the Congress to approve. In the UK, the Judicial Appointments Commission (JAC), set up in April 2006, selects candidates for judicial office in all the courts and tribunals in Britain.

The National Judicial Appointments Commission, which was unceremoniously dumped by the Supreme Court, was an attempt to restore merit as a criterion, and yet ensure the independence of the Judiciary. The NJAC contemplated the participation of both the Executive and the Judiciary in making recommendations.

The Court has overreacted by holding the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”. By doing so, the Court has ignored the unanimous will of the Parliament, most of the state legislatures and the desire of the people for transparency in judicial appointments. It has perpetuated a system that has not proven to be in any way superior to what it superseded.

(The author is chairman and founder of Centre for Policy Alternatives.)