The Supreme Court’s striking down of the 99th Amendment (National Judicial Appointments Commission act, NJAC) seems to confirm that Indian institutional development follows a maxim of its own: Thou shalt meet overreach with more overreach. The judiciary-legislature tussle in India has never been based on first principles. A dominant executive sought to undermine the independence of the judiciary in the 1970s. In response, the judges created an appointments process where they could, as Justice J. Chelameswar writes, “exult and frolic in our emancipation from the other two organs of the state”. The legitimacy of this arrangement, where the judiciary effectively shut out other branches of government, was always dubious on constitutional grounds. We put up with it because it seemed to have the effect of securing judicial independence. But then allegations of corruption, a general sense that the judiciary itself had become unaccountable, led to a clamour that judges could not be the sole judges of their own cause. Unaccountability, rather than independence, became the bigger worry.
Parliament, with rare political unity, passed the NJAC act. It was right on two grounds. It had the power to pass such a law; and the law was premised on the sound thinking that the appointments process needed to be broadened. But, as this column argued (‘Whom do you trust?’, May 14), Parliament overreached in a design and institutional sense. The composition of non-judicial members and the presence of the law minister would result in an NJAC that, in all probability, would undermine the independence of the judiciary, even if it possibly made it more amenable to outside input. Parliament should have been more careful in drafting legislation that could bring outsiders into the appointments process in a way that did not raise the spectre of political dominance. The attorney general’s arguments, generally free of nuance, added fuel to that fire. Many had hoped that the judiciary would give due deference to what Parliament was trying to do, acknowledge that there is a serious problem with the current arrangement but possibly introduce safeguards by reading down the legislation in some way. This is always tricky, because it also involves an overreach of sorts — re-reading legislation. But the SC went the whole way, declaring the NJAC unconstitutional with a 4-1 majority.
The judiciary came to the conclusion that the NJAC, as currently constituted, would be a threat to judicial independence. It is hard to disagree. The judgment and reasoning is quite careful. There is a lot of technical detail that needs separate discussion. But the core argument is this: The judiciary has established the principle of the independence and primacy of the judiciary on several occasions. Since this matter was settled, there was no need for reference to a higher bench, and Parliament should have taken that settled doctrine as a frame of reference. The judiciary believes that judicial independence cannot be maintained without two things: First, the primacy of the judiciary in the appointments process. The second and more controversial claim is that judicial primacy is challenged and independence impugned if the chief justice’s views can be rejected by the executive on grounds other than “dubious antecedents”. This is overreach. Justice Jagdish Khehar does as clever a job as possible of saying that under the current process also, there is executive participation. In a delightful historical aside, he turns the tables on those who invoke B.R. Ambedkar’s authority to suggest that judges are to be mistrusted more than the executive.
Where he overreaches is in the inference that inputs from non-judicial branches should be confined to such things as character and antecedents, not judicial quality. It is not clear why only judges can give inputs on judicial quality.
The other interesting issue surrounds the invocation of basic structure. Justice Chelameswar in his dissent seems to suggest that the basic structure does not apply here because this matter concerns institutional design, not individual rights. If judicial independence is a core value, so is an efficient and well-functioning judiciary. And his starting point is that the current system does not meet the latter objective. He also questions the assumption that the primacy of the judiciary would necessarily mean better protection of constitutional values. He is correct in chiding his fellow judges for creating a discourse where politicians cannot be trusted, and where trust in judges should be self-evident. In short, there is no empirical reason to trust the judiciary more than the executive.
How should one think of this issue? The historical narrative that both the majority and the dissent rely on can cut both ways. But Justice K. Joseph gets the basic institutional logic right. The issue is not whether in the past judges or politicians have better served the cause of liberty. The issue, as he puts it, is whether the current NJAC institutional design would lead to a kind of adverse “structured bargaining”. Given the voting rules of the NJAC and the presence of the law minister, this was a likely outcome.
The justices have basically opted for institutional caution. The present system has grave deficiencies, in terms of efficiency, accountability and even competence. But it compromises the structural independence of the judiciary much less. Changing to a non-judicial or executive dominance could jeopardise that structural independence. And the judiciary also has a point that it is not clear that appointments processes with greater executive input are giving better results.
But the judiciary has been forced to acknowledge its own faults. Even a justice in the majority, like Justice Joseph, is scathing on this. This suggests a ruefully missed opportunity. The politics of excess, the lack of full application of mind even in bipartisan legislation, makes institutional resolutions harder. Parliament missed an opportunity to reform the system in a convincing manner. If it had been more modest, not challenged judicial primacy, and shown how its reforms would be an improvement, it could perhaps have achieved a more participatory process. The tenor of arguments would have been different. Instead, it heightened the risks. The court’s exercise of near-exclusive prerogative in response is not ideal either; there are reasons to doubt its capacity for reform. But it tells you something about the mess Indian institutional life is in that to preserve institutions requires deforming them. We choose a lesser evil to prevent a greater evil. The judiciary is hoping citizens will see this judgment that way.
The writer is president, Centre for Policy Research, New Delhi and contributing editor, ‘The Indian Express’
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