Union Law Minister Kiren Rijiju recently spoke at a conclave organised by a Delhi-based media house on the topic ‘Reforming Judiciary’. “The present Supreme Court collegium system through which judges are appointed is opaque,” Rijiju said. He further added that “he was only reflecting the thinking of the people including the lawyer community and even some judges”.
This seems to be a delayed but well-considered response of the Centre to the comments made by the former Chief Justice NV Ramana who, while participating in a felicitation organised by the Association of Indian Americans in San Francisco, US, said, “… we still haven’t learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the institutions.”
The ex-CJI also said, “It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ i.e., the judiciary. Let me make it clear. We are answerable to the Constitution and Constitution alone.”
It clearly indicates that he was expressing the views of the Supreme Court and not just his own views.
I think it is a serious matter, not only for the Executive and Legislature, the other two most important organs of the State, but even for ordinary citizens like me.
Judiciary, like the Executive and Legislature, is the creation of the Constitution, which itself is the creation of the people of India, as the Preamble declares, “We, the people of India…hereby adopt, enact and give to ourselves this Constitution.”
From this, a layman like me can only infer that it is the people of India who are supreme. There was general agreement in the Constituent Assembly on the need to make judiciary independent as it was considered as the watchdog of democracy and the protector of the rights of citizens.
However, Dr Ambedkar, while participating in the debate on the appointment of judges, cautioned, “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have….”
Considering the views of various members of the Constituent Assembly, the framers of the Constitution provided a framework for the constitution of the Supreme Court, appointment of judges, their powers, functions and responsibilities and other aspects relating to their tenure and independence etc., through Articles 124 to 147 in the Constitution.
The original Constitution provided that judges of the Supreme Court shall be appointed by the President after consultation with the judges of the Supreme Court and the High Courts in the states as the President may deem necessary for the purpose, provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted (Article 124(2)).
Article 124(4) provided that a judge of the Supreme Court could be removed only through a process of impeachment on the grounds of proved misbehaviour or incapacity. The only other provision where the legislature has been given some role is in fixing the administrative expenses, including all salaries, allowances and pensions (Art 146(3)).
These provisions were considered adequate enough to ensure some kind of public accountability of the higher judiciary.
There is no provision in the Constitution to punish a judge for acts of corruption or misdemeanour.
Let us now examine how these provisions have actually been effective in ensuring public accountability of the higher judiciary.
Appointment of SC judges
The role of the Executive has been completely taken away through a series of judgements of the Supreme Court from 1993 onwards. The attempt of Parliament through legislation to constitute a National Judicial Appointments Commission (NJAC) to replace the collegium was also struck down as unconstitutional by the Supreme Court, in the fourth judges’ case, as it was held that the new system would undermine the independence of judiciary.
It is now a situation where judges appoint judges.
It may be mentioned that no other western democracies, from whom we have borrowed most of our constitutional provisions, have such an arrangement where judges appoint judges in the higher judiciary.
Impeachment
We have seen that the constitutional provision relating to impeachment has proven ineffective as not a single judge has been impeached since the beginning of the Constitution. And this is in spite of some of the judges of the Supreme Court themselves publicly expressing their views about the lack of integrity on the part of some of the judges of the Supreme Court.
It is also a matter of concern that the current practice of judges appointing judges is also against the ‘basic structure’ of our Constitution, which provides for checks and balances among the three main organs of governance, as now Executive and the Legislature have practically no say in the matter of appointments and conduct of judges of the Supreme Court.
There is also no Code of Conduct for the judges, which can be legally enforced.
The power to interpret the Constitution also vests in the Supreme Court, which has been used by the top court to insulate itself from any interference by the Executive and Legislature.
There is no provision in our Constitution for a referendum and/or for setting up another Constituent Assembly to ensure judicial accountability to the public.
It is, therefore, up to the Supreme Court to devise an institutional arrangement, which will not only ensure that it is accountable to the people of India, but will also ensure that the judges who are accused of corruption or misdemeanour are brought to book, without diluting the constitutional provision for impeachment.
I am sure the Supreme Court has the wisdom and ability to come up with a satisfactory institutional arrangement, without compromising its independence. They can always seek the views of the Executive, Legislature and the legal fraternity in this regard.
The absence of any kind of public accountability has the danger of the Supreme Court becoming completely autocratic, which is neither in the interest of the country nor of the Supreme Court itself.
(The writer is a retired IAS officer)