By Dar Akhter Rasool
On October 16, 2015 the Supreme Court of India by a majority of 4:1 had struck down the National Judicial Appointments Commission Act, 2014 meant to replace the two-decade old collegial system of appointing judges in higher judiciary. The judgement is a benchmark in judicial creativity and activism.
The public faith in and credibility of the political class has dipped to an all-time low. The growing cynicism of the general public and abject failure of the political class in fulfilling expectations is for clear. It is in such situations that the courts have to step in to uphold the majesty of law and preserve people’s faith in justice, which is in sharp decline. Today, the executive perceives the judiciary as a threat to its political independence. The executive wants the judiciary to be submissive as has been witnessed in the past during the reign of Mrs Indira Ghandi. But, it is not merely the question of ego or supremacy between the two branches rather it is the question of institutional morality of judiciary. In the past, judiciary compromised its institutional morality and the result was ADM Jabalpur vs Shivkant Shukla (Habeas corpus case). A case, the New York Times called the “utter surrender” of Indian Supreme Court before an absolutist government. After 30 years of the said judgement, Justice PN Bhagwati said, “It was against my conscience… that judgment is not Justice Bhagwati.”
Judicial activism has been perceived in certain quarters as a success of constitutional governance, while others have sought to condemn it, often with the specific charge that judicial activism movement has caused the judiciary to overstep the boundaries of ‘proper’ judicial behaviour. Two days after the Supreme Court pronounced its verdict in Supreme Court Advocates-on-Record Association and another vs Union of India (2015), declaring the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 as ultra vires, India’s Finance minister, Arun Jaitley, wrote in his blog, “Indian democracy cannot be a tyranny of the unelected and if one elected are undermined, democracy itself would be in danger.” Attorney-General Mukul Rohatgi echoed similar sentiments when he said, that, “It is a flawed judgement ignoring the will of the Parliament, half of the state legislatures and the will of people.”
Judicial activism is born out of the well-recognised doctrine of the “independence of the judiciary” which places the law above the ruler himself. Judicial activism is an expression to describe the creativity of judges. It may rightly be called judicial activism but it is nothing more than the wise exercise of a jurisdiction vested in them under the Constitution. Judicial activism or rather the myth of it, seems to be over-emphasised. Judicial activism means nothing but acting according to the spirit of the Constitution.
The judiciary has a key role in the functioning of democracy and for upholding the rule of law. The judiciary has apolitical commitment and if power of appointment of judges is given to the executive, this will affect independence of judiciary. Rule of law requires that justice is impartial and people have confidence that the judiciary is separate and independent of the executive so that it can discharge its function to protect rights of the people even against the executive. The effort of the executive to have a say in appointment of judges was found by expert studies to be not congenial to the independence of judiciary. Reference was made to the 14th Report of the Law Commission that “if the executive had powerful voice in appointment of judges, the independence of judiciary will disappear and the courts will be filled with judges who owe their appointments to the politicians.”
NJAC is nothing but a trick of the political executive to usurp the independence of the judiciary and thereby damage the spirit of constitutional governance. NJAC is a Trojan virus at the judiciary’s door waiting to paralyse the whole judicial system by inducting judges like Justice AN Ray. In the past, many former judges like Justice AK Mathur, Justice Markandeya Katju expressed their fears executive intrusion. They said that if the judiciary doesn’t exercise restraint and over-stretches its limits there is bound to be reactions from politicians and others. The politicians will then step in and curtail the powers or even independence of the judiciary.
The question arises that were the judges arguing for a submissive judiciary under the garb of judicial restraint. Whatever be the arguments, the possibility of ‘political threat’ for the curtailment of the judicial powers should not or rather cannot dictate its functioning. What the two judges have suggested through their observations seems to be inspired more by idealism than the practical realities. But unfortunately, idealism does not work in a society which is plagued with corruption, vested interests and deprivations. Also the legislative process, which is predominantly a rule of the majority rather than reason, fails to satisfy the ends of justice. After all, the majority does not have the monopoly of being always right. Thus, for the sake of democracy and constitutional governance the judiciary must undertake a proactive role to uphold the spirit and majesty of law.
The need is not to swap the collegium system with that of the defunct NJAC rather to make the existing system more vibrant and efficient to deliver transparency. For the sake of transparency, the deal to compromise judicial independence seems to be highly illogical and expensive. As reiterated by the learned Chief Justice of India, RM Lodha in his article ‘Constitution’s will upheld’ published in The Hindu, “Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary in the matter of the appointment and transfer of judges of the superior judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that all appointments by the collegium meet the tests of fairness and transparency and all selections are made solely on merit with an encouragement provided to diversity in persons available for selection. Appoint good judges; the rest will follow.”
—The author is an Advocate at Delhi High Court. Feedback: email@example.com