Interesting speeches on the Constitution Day lead us to exciting days of clashes ahead concerning appointments, independence and accountability of the Judiciary.

The speeches by the Honorable President, Prime Minister and the Chief Justice of India celebrating our Constitution Day were more than exciting and deserved delving.

First, what the learned Justice Gautam Patel of the Bombay High Court said:

History will not judge us by highways, bridges or statues, but by how well we preserved the Constitutional Idea of India and saved it from being undermined.”

These utterances are full of delusional self-righteousness, lofty smugness and make no sense. I have no reasons not to believe that Justice Patel is a highly competent judge. But what was he trying to convey here? The “privileged” Judiciary wants us to live without proper access to roads, electricity, housing, etc., just like how we spent the last seven decades post-independence?

With all due respect to Milord and may his majesty remain unblemished forever, history will definitely judge our Judiciary on the following counts:

  • That India survived extreme poverty because our elites and their never-ending privileges take offence if the minutest of their entitlement protocol is violated.
  • The gigantic backlog of cases has turned “justice” the most expensive thing to demand in India for those in distress.
  • The priorities of hearing a terrorist’s mercy petition past midnight and rejecting to hear a plea on the genocide of lakhs of Kashmiri Hindus. Was it also to preserve the Constitutional Idea of India?

The bitter truth is, thus far, the Judiciary appears to have failed the test to the ordinary observer.

A developing country cannot talk about fictional morality. No nation is judged today by its Constitution but the concrete outcomes of political will. India needs to grow economically to lift its poor, deliver merit, produce goods, fund health and education, have excellent infra, ensure robust defence and security – and that’s the bottom line.

That’s why the speech of Prime Minister Narendra Modi, who called out the “colonial mindset”, becomes so critical where he alleged the developed countries of wanting to deny developing countries the very means through which they became developed. While saying that, he also clearly emphasized that:

It was unfortunate that even in India, some people use the ruse of freedom of expression and other excuses to hinder the country’s development. A vigorous drive is going on to close the path to development, and people who do this don’t have to bear its brunt.”

It was a direct message that Milords should stick to their core competency and stop commenting on everything as societal prophets in their quest to appear on newspaper headlines.

The next piece of speech that went viral and received maximum attention was that of Honorable Chief Justice of India, N. V. Ramana, who said:

Framers of Constitution made accountability an integral element with respect to legislature & executive. However, they consciously decided to keep Judiciary on a different pedestal. They trusted the competence of men & women who would adorn the bench in upholding the Constitution. Looking back, I can proudly claim that, as an institution, the Judiciary has lived up to the faith reposed in it by the Constituent Assembly. The fact that the Indian Judiciary continues to be the last hope for those in distress suggests that it is on the right track.

It was hard to believe that a sitting CJI has made such a statement which is also factually incorrect. If the framers of the Constitution didn’t want any accountability of judges, why would they bring a provision for ‘removal of a judge’? What was the rationale behind Article 124 (4) and 217, which deals with Judges’ removal and impeachment? The Judiciary thinking that they have divine rights and are on a higher pedestal than the Constitution itself and should not be questioned – is neither democratic nor just. How can it then serve the Constitution fairly?

All institutions are run by people who are prone to both virtues and vices. And that is why the framers of the Constitution envisaged checks and balances over all three branches.

CJI Ramana’s words and the context was misplaced. The principles of natural justice are not idle words. They are grounded in morality and intended to help build impartial, trustworthy institutions that instil public confidence.

I am glad that these utterances are making enough noise. The inconvenient truth is that the Judiciary’s corruption, incompetence, and arrogance have not been discussed enough. A good time to start discussing the position today about the appointment, independence and accountability of our learned Judges.

The Framers of our Constitution were advocates of the view that independence of the Judiciary is sacrosanct. However, they also kept in mind the aspect of competence and accountability of the institution.

Dr Ambedkar expressing the objective to achieve both, said that the house was against the idea of giving absolute power to the executive in the matter of appointment of judges. Additionally, he also noted that in the quest for independence of the Judiciary, there was no desire to create an “Imperium in Imperio” (sovereignty within sovereignty).

This deliberation was encapsulated in Articles 124 and 217 of the Constitution. But over the years, the Judiciary staged a virtual coup and usurped the executive’s rights and became entirely unaccountable for anyone.

How did it Happen?

1. [SP Gupta v. Union of India, 1981]: Post-Emergency, the learned Judges have made a massive deal to judicial independence, the blame for which squarely rests on one and only Indira Gandhi. Due to the executive supremacy, interpretation of ‘consultation’ with the CJI in appointment matters was questioned. However, in this particular judgment, Justice Bhagwati upheld the executive primacy.

2. [Supreme Court Advocates-on-Record Association v. Union of India, 1993]: However, the stance was changed in 1993, and the word ‘consultation’ was comprehended as ‘concurrence,’ establishing the Judiciary’s primacy in the matters of appointment. This judgement, along with Re Presidential Reference (1999), brought the present collegium system into existence.

The Collegium since then became a clique of the CJI and senior-most judges of the Supreme Court who have the absolute authority to determine the judicial appointments and transfers. The exclusivity of the Collegium System was severely criticized on the ground that the Judiciary, in a quest for independence, has foregone its credibility. There have been allegations that the Collegium’s working opaqueness has led to appointments based on lobbying and nepotism

 with zero accountability.

The framers of the Constitution did not intend to keep the Judiciary restricted to forty-fifty families with a self-perpetuating cycle of privileges and questionable credibility. The Constitution didn’t envisage that as the basic structure.

In response to the various criticisms and to restore the credibility of the Judiciary, especially in the appointment process, the parliament introduced the National Judicial Appointments Commission (NJAC) Act, 2014. The NJAC Commission was a 6-member commission with representatives of both the executive and the Judiciary. It comprised the CJI, two most senior SC judges, the law minister and two eminent personalities. They were to be selected by a committee comprising CJI, Prime Minister and leader of the single largest opposition party. This bipartisan body signified that judges would no longer have exclusivity in the matter of appointment.

3. The 2015 Judgement: [Supreme Court Advocates-on-Record Association and others v. Union of India and Others]: Continuing about the imaginary threats to its independence, the Supreme Court struck down this amendment. The ground was that this Act violated the basic structure of the Constitution, stating that the initial and ultimate decisions in matters of judicial appointments and transfers are solely in the realm of the Judiciary.

The framers of our Constitution did not mention judicial primacy symbolized in the collegium system anywhere in the Constitution. It is the result of convenient interpretation by the judges to eliminate the role of the executive in the process of appointment. Eminent jurists have severely condemned these judgements.

That is why President Ram Nath Kovind words, while giving the valedictory address, offers a fresh momentum to calls for reforming the selection method, where he said:

the judge selection process is a ‘pertinent issue,’ which should be attempted without diluting the independence of the Judiciary.”

There is an acute need for Judicial Reform to build an operating system that works efficiently and in a justified manner to reaffirm that principles of natural justice are sacrosanct. This affirmation needs to be made afresh by the Supreme Court, not merely in passive thought or words, but spirit.

PM Modi is a master orator, and he knows how to pass a direct message while maintaining a slight tangent. The emphasis on separation of powers in PM’s speech before the top judges and the President was evident. Playing on the front foot, he called out ‘misplaced activism,’ which stunts India’s growth by seeking elitist ideals into Indian realities. The message was straightforward.

Both PM and the CJI speaking a bit past each other, and President Kovind adding fresh momentum to Judicial appointments; we can expect some exciting days of clashes ahead concerning appointments, independence and accountability of the Judiciary.

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