Union Minister Arun Jaitley describes the Judgment of the court in the NJCC case as “the tyranny of the unelected”. He forgets that that is how the constitution was drafted, by giving the power of judicial review to unelected judges. If his government had any problems with that, given the numbers they enjoy in Parliament, nothing prevented them form replacing the system with elected judges! They did not do that. It does not now lie in his mouth to complain about the ”tyranny of the unelected”. What is more important, is whether we are going to replace the “tyranny of the unelected“ with the tyranny of numbers? While appreciating the judgment of the Supreme Court in the NJAC case, certain basics must be kept in mind.
Ultimately, the judiciary exists for the people of the country where each counts for one. Justice is a personalized dispensation to one solitary individual or a collective with a common interest such as a group of SC/ST or religious minorities. They must carry the impression that justice has been done in that specific case.
It follows from this that the ultimate accountability of the judiciary is to the people of the country where each counts for one. The argument that this judgment had undermined an absolute parliamentary majority, therefore, has no relevance to this discussion. All laws are entitled to the same constitutional legitimacy whether passed by a majority government or not. A parliamentary majority however does not immunize a law from Constitutional challenge, and when challenged, it is the Supreme Court that is the final arbiter of the rights and wrongs of the law. With this, surely the government of the day will have no quarrel and hence the constant flaunting of the “majority” argument as representing the “will of the people” carries no weight.
Majorities and minorities exist not only in Parliament, but more importantly among the general population. Judges are no doubt unelected but they swear allegiance to the Constitution. Their special function is to do justice between individuals, between collectivities and between the citizen and the state in a free and fair manner. A political party in contrast is free to purse its political agenda, Judges, on the other hand, are not bound by the political agenda of a majority government, nor by the laws that reflect that agenda, but only by the duty to protect the fundamental rights of the people where each counts for one.
That being said, let us look at the fundamental flaw of the NJAC act as spelt out by the Court – the power given to the Executive to determine who will not be a judge through the veto power of any two. These two can include the Law Minister and the one of the two “eminent persons”. The judgment pointed out that no qualifications have been spelt out for who is eminent and who is not. Moreover, any such spelling out ought to be in the Constitution itself, this is left to the executive to determine. It has been argued that the introduction of “lay persons” into the selection process is a measure of democratising the judiciary. This can hardly be said in the present context. The categories of ”non-political“ and “eminent“ have been contested by the kind of polarized debate that has been generated by the ruling party we have seen in this country over the last few years. Members of the NAC have been bad mouthed as being stooges of the UPA no matter how eminent they were, and RSS ideologues have been appointed Governors in the category of “eminent persons”. When questioned, we are told that their views are personal to them and not in the capacity of Governor. This kind of split personality is not visualized by the expression “eminent“ person. As Romila Thapar points out, there is a difference between the Public Intellectual and an “eminent” person. Eminence conferred by the state does not make a Public Intellectual. For these reasons, the Constitutional amendment does not guarantee independence of the judiciary and has been thus struck down.
That leads me to a critique of the collegium, I find a refreshing new way of writing judgments in these separate judgments including the dissenting judgment. They are not as we see normally, dictates issued by those who have the power to deliver judgments. They are not only reasoned but are also conversational in nature. The court is conversing with the people of the nation directly and what is more, inviting the public to send in suggestions for improvement of the collegium system, perhaps for the first time a Judgment of the Supreme Court is extending this invitation by recognizing the importance of the issue for ordinary people. This is participation in the true sense of the word, not by the token appointment of “lay persons” on a commission. It is now for us to take up the challenge and suggest ways and means of making the collegium accountable to the nation. If we fail in this, we will fail the nation. What the Executive failed to do, the judges can now do. There was no provision of a Secretariat in the Act, no data bank of existing and potential judges, no prospect of inviting applications for appointment, no participation of the public in terms of entertaining objections. All the Court can now do and demonstrate is that the country is ripe for dealing with transparency and the judiciary is mature enough to be accountable to the people.
Let us not forget that the original idea was to introduce a package of three bills in parliament simultaneously: NJAC, a Judicial Standards Bill and a Judicial Accountability Bill. The Government of the day that commands a majority must also account for the two missing bills, if they want to be believed that they were determined to democratize the judiciary.
– Views expressed by the author are personal.