IS THE APPOINTMENT OF THE JUDICIARY STILL INDEPENDENT?
The Indian Constitution has ensured the independence of the Judiciary by not involving the legislature in the process of appointment of judges. It was believed that party politics would not play a role in the process of appointments. A collegium of senior judges has been responsible for deciding the appointments and transfers of judges to India's higher courts since a Supreme Court decision in 1993.
The five most senior judges on the Supreme Court, which is the nation's highest court, decide on appointments, while the three most senior judges on each of the high courts decide on appointments. The central government is anticipated to ratify rulings sent by the Supreme Court collegium. However, through the 99th Constitution Amendment, the Parliament of India passed the NJAC bill which was assented by the President of India and came into force in April 2015.
The National Judicial Appointments Commission, headed by the Chief Justice of India, two other judges of the Supreme Court, the law minister and two “eminent persons” who shall be appointed by the Prime Minister and the leader of the opposition. Even though the NJAC makes the appointment of judges transparent but it also violates the basic structure of democracy. A 13-judge Supreme Court panel ruled in the historic case of Kesavananda Bharti in 1973 that Parliament could not approve a constitutional change that contradicted the "fundamental structure" of our Constitution. Every significant Supreme Court ruling over the years has emphasised the significance of the basic structure theory and acknowledged the judiciary's independence as a fundamental component of our Constitution. However, the judiciary is expected to safeguard the rights of the citizens of the country and that can only be done if the judiciary is kept separate from the executive or the political parties.
JUDICIAL REVIEW
The ability of a country's courts to check whether the legislative, executive, and administrative branches of government are acting in accordance with the nation's Constitution is known as judicial review. Using the same judicial review power and after hearing the petitions submitted by various people and organisations, with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner, the Constitution Bench of the Supreme Court on October 16, 2015, by a 4:1 majority upheld the collegium system and declared the NJAC to be unconstitutional. The NJAC gave equal power to the executive and the judiciary as well as had the Prime Minister and the Leader of the Opposition involved in the appointment of 2 members of the NJAC.
COLLEGIUM SYSTEM AND THE ISSUES
Even though the collegium system is back, it has a lot of criticism attached to it. Suresh Mane, a lawyer and the former national general secretary of the Bahujan Samaj Party said that "some people limit appointments to no more than 150-200 families in order to carry the legacy of the judicial system." Similar thoughts were expressed in 2017 by Upendra Kushwaha, the Union minister of state for the Human Resource Department government. 11 of the Supreme Court's 28 judges, according to an Outlook study from 2016, were born into families of judges or other legal luminaries.
Despite the collegium's repeated requests, the Centre has been withholding names in an effort to restore control over the appointment process. The Centre is required by law to appoint a candidate when the collegium recommends them. Even though they were recommended together, the Centre occasionally chooses to employ some of the collegium's suggested names while omitting others. When the collegium headed by Chief Justice Dipak Mishra had sent names of Uttarakhand Chief Justice K.M Joseph and Senior advocate Indu Malhotra as Supreme Court Judges, the Union Ministry sent back the recommendations without passing it on to the President of India. Justice K.M Joseph was part of the Uttarakhand High Court bench which quashed the imposition of the President’s Rule in the state and this is said to be the reason why the Centre did not approve his appointment as Justice Joseph does not follow any political party’s orders.
Justice Ranjan Gogoi who had allegations of sexual harassment against him during his tenure had been nominated as a member of the Rajya Sabha by President Ram Nath Kovind. Further, as a former Chief Justice of India, Ranjan Gogoi presided over benches in significant cases where the government that nominated him had significant political interests, raising doubts about the constitutional separation of powers between the executive and judicial branches. These included the Rafale case, the firing of Alok Verma as director of the Central Bureau of Investigation, the Ayodhya issue, as well as a number of other significant cases. While this is not the first time a former CJI has become a member of the Rajya Sabha, a direct nomination by the government of a former chief justice is indeed unprecedented.
Different political parties have a different stance on the separation of power with respect to the appointment of judges. Former Law Minister Kapil Sibal belonging to the Indian National Congress went against the current Law Minister Kiren Rijiju (BJP) who wants the government to hold the right to appoint judges. Kapil Sibal posted on Twitter “It’s unfortunate that we have a law minister who is uninformed about the law and the amount of work judges do.”
Chief Justice Chandrachud acknowledged that it is the law of the land in November 2022. By smoothing out the wrinkles and being open to criticism, we need to strengthen the collegium system. Such matters require constitutional statesmanship, he stated.
Written by
Adv. Paarth Chanchlani,
Founding Partner, CLAWW
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