Is SC missing the wood for the trees?

A five-judge bench of the Supreme Court is currently examining the constitutionality of the 99th Amendment Act under which the National Judicial Appointments Commission (NJAC) has been created. Some Public Interest Litigations (PIL) challenged NJAC’s constitutionality on the ground that it affects the independence of the judiciary that forms part of the basic structure of the Constitution, which is inviolable. So the issue is only one: Is the independence of the judiciary going to be compromised by this amendment?

Unfortunately, the arguments proffered by both sides seem to be trivialising the issue. Recently, when the attorney-general, appearing for the government, excoriated the collegium system for appointing many incompetent judges, the bench quipped that the same incompetent judges were rehabilitated by the government in various commissions. However, the bench was magnanimous enough to say, “Mistakes would be there whether it is one system or other but we have to see the nature of mistake and whether the mistake was intentional.”

It is true that some of the judges stand out for their non-performance and it is astonishing that they were not only appointed, but even made it to the apex court. One such example is that of Justice Cyriac Joseph, who hardly delivered any judgments as a HC judge, but was elevated to the Supreme Court. In the SC, he wrote only seven judgments shortly before retirement, after there was a hullabaloo that he would demit his office with a zero score.

Those opposing the NJAC have ratiocinated that judges do not have primacy under it. The NJAC comprises six members, of whom three are senior-most judges of the Supreme Court, one is the Union law minister and the remaining two are “eminent persons”. Since there are three judges, it is wrong to say that they do not have primacy. But since any two members can veto any name, those opposing it say that the law minister will have to win over just one eminent member to veto any proposal of that judge. What they conveniently gloss over is that the Chief Justice of India is part of the committee that will select eminent persons, the other two being the Prime Minister and the Leader of the Opposition. Besides, two judges can also veto any proposal of the law minister, even when backed by the two eminent persons. Perhaps they want the judges’ monopoly to stay.

The 99th Amendment Act was brought with the specific purpose to abolish the collegium system which is extra-constitutional but has been practised since the Supreme Court’s judgment in the Second Judges’ case, which introduced the system. The Constitution nowhere provides for it, and the collegium system has been subject to criticism for its opacity.

In 2014, the SC collegium had to reject the entire panel of 12 names for the Madras high court recommended by the high court collegium after it spawned fierce controversy. In the Madras high court, judges are divided on caste and political lines. Recently, one judge of the Madras high court launched contempt proceedings against the chief justice of the same high court. In July 2013, the then chief justice of Gujarat high court, Bhaskar Bhattacharya, accused the CJI, Altamas Kabir, of being biased against him and stopping his elevation to the apex court as he had opposed the elevation of Justice Kabir’s sister as a judge in Calcutta high court. She was appointed when she was past 60.

Such problems arise because the process of appointment is shrouded in mystery. Last year, the government vetoed the appointment of Gopal Subramanium as a judge of the Supreme Court citing the allegations levelled against him by the Intelligence Bureau and the Central Bureau of Investigation questioning his propriety as solicitor-general in the 2G spectrum scam and his alleged links with former corporate lobbyist Nira Radia, whose intercepted conversations were being examined by the CBI. Had it been an open system, Mr Subramanium would have been able to respond to these allegations.

In the US, the President nominates the candidate for Supreme Court judgeship who is then grilled by the Senate Judiciary Committee which is televised; neither the chief justice nor other judges are informed, much less consulted. This grilling becomes all the more important as there has always been an attempt to pack the court with nominees. President Richard Nixon tried to draft two southern segregationists as Supreme Court judges, but the Senate rejected them.

In September 2006, John Roberts, President George W. Bush’s nominee for the Chief Justice of the Supreme Court, was live on television for four days, giving an account of himself, defending his past judgments, explaining his judicial reasoning, elucidating his judicial philosophy and identifying his role model in the judiciary. Mr Roberts was bullied by Senators like Edward Kennedy, but he always maintained his composure.

The collegium system has been under attack ever since its inception in 1993, by a judicial interpretation, which was tantamount to rewriting the Constitution. The SC has said that if the amendment is struck down, the collegium system will be revived automatically, while the Centre has made it clear that it can’t be. One thing should not be lost sight of: the amendment bill was passed unanimously by both the Houses of Parliament and ratified by more than two-thirds of state legislatures.

There has to be a well-defined basis for appointments. At least for the elevation to the SC there should be scrutiny of a fixed number of judgments delivered by the competing candidates by a panel of outstanding jurists, and it should be released on a website for scrutiny by the people.

The writer is a senior TV journalist and author