Judicial independence

Judiciary must now do a better job of selecting judges

By striking down the constitutional amendment passed by Parliament to enable the creation of the National Judicial Appointments Commission (NJAC), the Supreme Court has sought to ensure that the political executive of the day does not have a say in the appointment of senior judges. The apex court has held that the primacy of the judiciary in making judicial appointments was indispensable for ensuring the independence of the judiciary and the NJAC, in seeking to have a say in judicial appointments, was trying to interfere with that independence. Thus the collegium system, prevailing since the 1990s, will continue to do so. At present, the prospects of a review petition being filed seeking a relook at the decision are low as the judgment totalling over a thousand pages indicates that the judicial mind has been intensively applied. There is also little chance of Parliament being able to again unanimously pass legislation to create a body like the NJAC, because the attitude of the Congress has changed drastically.

It has been argued by some Union ministers that the Supreme Court's decision flouts the will of the legislature expressed through the amendment being passed unanimously by both Houses of Parliament and also endorsed by a majority of the state legislatures. This may well be so but it has to be remembered that Parliament owes its existence to the Constitution and the keeper of that Constitution, as ordained by the same Constitution, is the Supreme Court. It is important to understand why there is no public outcry over what the political class is seeking to portray as judicial overreach undermining the sovereignty of Parliament. The record of the political class in making appointments to critical positions, which are not just impartial but are also seen to be so, is fairly dismal. The country desperately needs an independent head of the Central Bureau of Investigation or CBI (so that it ceases to be a "parrot" of the government of the day), an independent Lok Pal and heads of organisations leading national educational institutions. With none of these in sight, the political class lacks credibility when it says it has devised a system (in which it will have a say) for selecting independent-minded judges.

To move forward now, it is important to note that while the collegium will prevail, all is not right with it and the judges have themselves said that they are open to ideas on how things can be improved. Therefore, all heads need to be put together so that the collegium system is rid of its obvious flaws and can thereby do a better job, which the higher judiciary has entrusted to itself. There is a need for a properly laid-down procedure for selecting senior judges and ensuring transparency over its application. This should result in elimination of discretion in such appointments. It is unfortunately true that poor choices have been made in the past. If imperfections in the selection process are removed, the country will get better senior judges who will be able to play a more positive role in addressing the overall issue of judicial reforms.