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#NJAC : Let's turn the clock back to pre-collegium days

Vivek Katju | Updated on: 13 February 2017, 6:08 IST

Judges are bosses

  • The SC wants to keep judicial appointments authority with judiciary
  • But this was not always the case

Nothing went wrong

  • Judges appointed before the current collegium system did just fine
  • The independence of judiciary was never threatened

Switch-back time

  • In any system, individuals play a big part
  • Perhaps it\'s time to switch back to pre-collegium days of discretion

The Supreme Court has struck down the National Judicial Appointments Commission. It has decided that it will not tolerate any attempt to dilute the superior judiciary's two-decades-old total control of the appointment of Supreme Court and high court judges.

In 1993, the Supreme Court decided that it would formally become the final decision maker in the appointment of judges for the apex court and high courts.

That was the essence of the majority view, articulated by Justice JS Verma in the Judges case. It was a daring appropriation of power, which until then had vested in the central government.

Indeed, in 1981, the Supreme Court itself had held that the final authority for these appointments was the Centre. Generally, however, the proposals of the judiciary prevailed, notwithstanding the final power vesting in the Union government.

Why then the need for this total change, which perhaps the framers of the Constitution had never envisaged? Equally, it is true that they had not contemplated that a government would seek to have a committed judiciary as Indira Gandhi attempted to have in the 1970s.

There is a wealth of legal reasons given by Verma for the decision, but the real reason seems to be the conviction of the majority of judges that unsuitable appointments were being made.

Verma, writing for the majority, noted that the concerned constitutional functionaries had failed to appoint suitable people as judges. By strange logic, the judiciary -- which was a party to the exercise -- was implicitly excluded from these constitutional functionaries.

Perhaps it was felt that sober judicial minds acting independently would cleanse the system.

So began the collegium system. There is nothing in the Constitution, which provides for such a system for the appointment of judges. It is purely a creation of the Supreme Court.

Higher judiciary needs a lot of introspection; @VivekKatju writes after #NJACVerdict

Once having decided that the judiciary should have a final say in these appointments, the Court could not allow the Chief Justice of India (CJI) and the chief justices of the high courts to act alone. Nor could it allow an informal arrangement that would leave them the freedom to act informally and consult whomsoever they wished.

Hence, an elaborate system of consultation was also put in place. And all this was justified to protect the independence of the Judiciary.

Only a full reading of the NJAC judgment would provide a full account of the court's reasons on this occasion, but it is clear that it cannot have strayed far from the logic of the structure of the Verma judgment.

All through these years the question has been if it was really necessary to change the old system. It allowed for a certain play, some give-and-take between the executive and the judiciary in these appointments though, as noted above, normally the nominees of the Judiciary were appointed.

Was collegium needed?

The independence of the judiciary was never threatened and it gave outstanding judgments that have moulded our polity. The fact is that firm Chief Justices did not allow politicians to place unsuitable persons in judicial positions and politicians of integrity did not interfere in these appointments.

In this context, CJI Hidayatullah recalled his experience as the Chief Justice of the Madhya Pradesh High Court. In his autobiography, 'My own Boswell' he writes that Congress heavy weight Ravi Shankar Shukla lobbied with him to nominate two undeserving persons for the High Court Bench.

He refused and Shukla could do nothing at all. He also notes that Shukla's successor KN Katju told him that as Chief Justice, Hidaytatullah knew the courts best and so he would support his nominees unless he knew that a nominee was undeserving. In that case he would caution him.

The fact is that the power of appointment is, at all times and in all situations, that of a political nature. It is constrained only by convention and the conviction and integrity of those who exercise power.

#NJACStruckDown but Indian judiciary never faced a threat, says @VivekKatju

It is only then that the pitfalls of patronage are held in check. Therefore, the true strength of democratic systems lies not in the text of the law alone. More important are healthy conventions that have to be sustained by the individuals concerned. If they are people with feet of clay then nothing can save systems.

The higher judiciary has to do a great deal of introspection. The common man still respects it and has faith. However, if the entire judicial edifice continues to be as corroded as it is these days with lakhs and lakhs of pending cases, that faith will be eroded with adverse consequences to India's polity.

The initial reaction of the government and the political class has been restrained. That restraint has to be shown in the coming months also to avoid a constitutional crisis. The judiciary, too, has a role to play to in the smooth management of the polity.

Also read- Ram Jethmalani: Modi and his ministers should resign after this judicial slap

Times change and so do challenges. Nostalgia for the old days is a fruitless exercise. But sometimes, and it is very seldom, putting the clock back may offer a solution.

Perhaps this is one such occasion and the reinstitution of the old pre-1993 system of informal checks and balances needs to be considered.

First published: 17 October 2015, 1:16 IST
Vivek Katju @CatchNews

Vivek Katju is a retired diplomat who has served as India's ambassador to Afghanistan, Myanmar and Thailand.