Date: 15/12/2022

Relevance: GS-2: Structure, Organization and Functioning of the Judiciary;

Key Phrases: Opacity of the Collegium System, Undermining of Judicial Independence By the Executive, Elected Autocracies, Well-Defined Criteria for Appointments, Transparency and Accountability in Selection

Why in News?

• A public attack on India’s Supreme Court by government ministers is reviving a debate about whether elected representatives should have a say in choosing the country’s arbiters of justice.

Key Highlights:

• The Supreme Court is being criticized for scrapping in 2015 a law passed by parliament i.e., NJAC that had specified a method to appoint new judges.
• It is alleged that the opacity of the collegium system allows judges to appoint or promote people they know rather than the fittest person for the job.

Undermining of Judicial Independence by the Executive:

• The Supreme Court, conceived as the custodian of the Constitution and the final arbiter of the law, has had an inconsistent history.
• While the government under Indira Gandhi intended to destroy the judiciary during the Emergency, the entire Court, barring Justice H.R. Khanna, was also concurrent in the erosion of citizens’ rights that took place then.
• The current government similarly is being slammed for seeking a bigger role in the appointment of judges.
• While the executive arm plays a vital role in the selection of judges in the US, India has favored an independent judiciary as a key feature of its constitutional democracy.
• At present, a collegium of the Supreme Court’s five senior-most judges recommends potential candidates for appointments.
• These recommendations are to be vetted and approved by the government. In case of a deadlock, the collegium’s position is required to be considered final.
• In a recent instance of departure from the established procedure, the government returned 19 recommendations made by the collegium but 10 of these were recommended a second time.
• Clearly, the present government continues to try and undermine judicial independence,

An Elected Autocracy:

• The present move of attempting to undermine and discredit the judiciary, as seen in the comments by the government ministers, is part of the larger mission to make the executive the most powerful entity.
• Today, executive accountability is a thing of memory, for no one raises any questions about its actions.
• Since 2014, the Government has undertaken a well-crafted, deliberate takedown of various institutions and mechanisms that could hold the executive accountable.
• Its efforts may not be as defiant as the Indira Gandhi-led government, but the same ends are being achieved: the state is rendered practically lifeless, and the executive, most often, has the upper hand.
• The parallels of this can be drawn with ‘elected autocracies’, where elected governments use the very institutions integral to democracy to kill democracy itself and destroy civil liberties.

Alleged Undermining of Democratic Institutions by the Executive:

• The National Human Rights Commission has been made dormant.
• Investigation agencies are misused at the slightest opportunity, with action against activists, journalists, students, political opponents, or anyone who protests against the government.
• The Election Commission of India appears to have been clearly compromised.
• The Information Commission is almost non-functional.
• Others who can hold the executive accountable — academia, the press, and civil society have also been systematically emasculated.
• Universities are under attack.
• An unbiased mainstream fourth estate in India no longer exists, and the media operates mostly as a propaganda machine.
• Civil society, too, is being slowly but surely strangled.

Evolution of a Resurgent Judiciary from a Submissive One:

• The judiciary has remained passive, even submissive, to the executive since the Supreme Court’s decision in 2015 on the National Judicial Appointments Commission (NJAC) Act, and consequently, not even a whisper emerged against the collegium.
• However, with the Court being more assertive and speaking in a non-aligned and confident voice, the executive seems to have recognised that the judiciary is the last bastion and final protector of civil liberties which it must overcome to claim its position as the most powerful entity in India.

An Independent Judiciary: Non-Negotiable:

• In the early years of modern India, decisions on judicial appointments were usually made on the advice of the CJI.
• Even if concurrence was not contemplated, an independent judiciary was non-negotiable for our founding fathers.
• Dr.B.R. Ambedkar was unambiguous that appointments should have no political pressure and considerations, but that consultation with persons who are well-qualified to give proper advice would be appropriate.

NJAC as a Solution:

• The NJAC law could have fixed this problem, but it had many flaws, structured to undermine judicial independence, including giving a veto to eminent persons.
• The Court could have read down these flaws and at least set up a body that could incrementally improve with every selection round.
• Instead, the Government refused to accede to any change or modification in the law.
• Eventually, the Court was forced to strike down the law completely, leaving only the collegium system again.

Need to Fix the Appointment System:

• The collegium system is currently the law of the land, which everyone, including the executive, must adhere to.
• Instead, a defiant government is being witnessed which is refusing to cooperate, let alone consult, with the Supreme Court, and the names proposed by the collegium are left pending for years, only to be eventually returned unceremoniously.
• Similarly, vacancies in the higher judiciary are directly due to the Government’s frequent refusal to accept names of persons who are out of favour.
• Pendency is caused majorly by poor judicial infrastructure, including an abysmally low number of judges.
• Court funding is at the mercy of the government, which is either particularly frugal or deliberately parsimonious in the matter.
• All these issues demand that the appointments system must be fixed.

Measures to Fix the Appointment System:

• Pending a clear, rule-based system, even the existing collegium system can be improved through the following measures:
  • well-defined criteria for appointments
  • transparency and accountability in selection
  • better methods of assessing candidates for elevation
  • improved ways of ensuring diversity and representation.

Way Forward:

• The people of India strive for well-structured and balanced legislation on a judicial commission that brings in transparency without compromising judicial independence.
• Until then, issues of pendency and infrastructure should be brought up in appropriate forums, such as the Chief Justices Conference, or meetings between the Prime Minister and the CJI.
• Press interviews or parliamentary addresses are not fit stages for this, and only serve to incite resentment and reinforce the view that the Government does not have a cooperative spirit.

Conclusion:

• It is no more just an issue of the executive against the judiciary, it is about the independence of the judiciary.
• One of the ways to ensure the independence of the judiciary is to ensure that the judiciary has a dominant voice in the appointment of judges.
• If left to the executive, there may be politically partisan appointments.
• The leadership at the Supreme Court appears to be in good hands now and is resisting the pressure and attacks in a dignified and restrained way.
• If the Government continues to handicap, perhaps the judiciary should find ways to persuade or even compel the Government to follow the law of the land.
• This is the best that the Supreme Court can do to protect democracy, and for the sake of Indian citizens.

Source: The Hindu

Mains Question:

Q. Explain the evolution of the Collegium system for the appointment and transfer of judges in India. Discuss the issues associated with it as well as suggest measures to deal with them. (250 words)