The current argument over the National Judicial Appointments Commission (NJAC) is likely to weaken institutional credibility further. On the surface, it seems like a reasonable process. The legislature proposes a new way of selecting judges; the judiciary scrutinises it for its constitutionality and likely ability to uphold judicial independence. But this surface dialogue has been fraught with mutual constitutional accusation. The constitutional principles and legal technicalities being invoked can barely mask the simple question: Whom do you trust more, the judiciary or the executive? This is not a question of constitutional principle; it is a question of judgement.
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The implicit constitutional accusation is this. The judiciary had, through improvisation, created a method of appointing judges that effectively sidelined other branches of government. This arrangement was tolerated, not because it conformed to a constitutional text or some hallowed principle, but because it seemed to maintain judicial independence. The experience of the 1970s made the prospect of political packing of the judiciary a live fear. This arrangement is being challenged, not because we have discovered a new principle, but because the credibility of the judiciary has declined. We are, in effect, saying that any arrangement that relies solely on the judiciary has proved untrustworthy. Those challenging the NJAC are relying on the ghost of the 1970s: Do you really want the political class to have a greater say in appointments? Both branches of government are accusing each other of not being worthy of trust. In the process, they have dragged each other down. The problem is that both are right.
The judiciary is refusing to face up to a serious crisis of credibility. There is a perception that the process of appointments is not yielding the desired quality. Internal discipline in the court hierarchy is broken. Witness the extraordinary spectacle in Madras of a high court judge bringing contempt proceedings against a chief justice, and the Supreme Court responding to this through legal rather than administrative measures. In public perception, the judiciary carries the odour of both incompetence and corruption. One effect of the J. Jayalalithaa case, whatever the facts of the matter, will be to send a signal to lower court judges that guilty verdicts in high-profile cases are unlikely to be backed up by higher courts. We deride lower courts a lot. And much is wrong with them. But it is hard to argue that judicial courage or credibility rises the higher up the system you go. The judiciary’s assurances to “trust us” are less credible than a decade ago. Seven star lawyers can make the judiciary starry-eyed about its own virtues and, therefore, its entitlement to be exempt from outside scrutiny. No one else is convinced.
Equally, it would be foolish to underestimate the risks of a larger executive role. Institutional dynamics suggest that wherever ministers are involved in a process, the power dynamic invariably shifts in their favour. Ironically, the sense that the judiciary has not asserted its independence even when it was formally independent adds to these fears. A weak judiciary needs stronger protection. The composition of the NJAC makes it clear that members other than the judges will have the upper hand. The track record of selection committees where nominees of the government are present is mixed, at best. So between a judiciary that has undermined its own credibility and an executive that evokes fear of politicisation, whom do you trust?
The formalism of the arguments can barely mask this crisis of trust. We want more transparent appointments. But here is the bad news. The formal design of the system has little bearing on quality, which will be determined by the persons, not the principles. We want more “criteria” specified for selection. But selection involves judgement, it cannot be robotically reduced to transparent criteria. This is the false comfort of formalism lawyers peddle. Or worse, even if you specify formal criteria, they will do little to ensure quality. Even if you say things like “eminent jurist”, “senior advocate” and so on, the blunt truth is there are eminent jurists and eminent jurists, advocates and advocates, even chief justices and chief justices. Giving, in public, reasons why candidates may have been rejected can often be an act of injustice against them. Let’s face it: This issue has come to a head because there is a deep crisis of character. And we think a formal process can be a fix. We forget that independence is not a quality inherent in an institution. It has to be claimed and reclaimed through regular conduct and action.
The current method of appointment was a usurpation of sorts. Some input from outside is important. Judging is too important to be left only to judges. In this light, the proposed NJAC is worth trying. The formal arguments against it are weak. It is not a violation of the basic structure, another fuzzy judicial invention that served an institutional purpose but has no principled basis if used indiscriminately. The mere presence of non-judicial members on a committee to appoint judges does not compromise independence. Is there a potential conflict in that the government is a major litigator and this puts the chief justice directly in a “negotiating” position with it? Possibly. But our apprehensions on this come more from our lack of faith in our chief justices.
So the only question is, does the NJAC make it more likely that courts become political tools? Given its current composition, this apprehension is real.
It effectively allows non-judicial members to scuttle appointments. A principled compromise would be to tweak voting rules in such a way that the judiciary gets inputs from outside but is not hostage to them. Another possibility is to do away with the role of the law minister.
There can be outside inputs without the presence of a minister whose power can skew the discussion. Such a compromise might better capture the competing anxieties that mark the current debate; it could secure independence but allow outside inputs. Otherwise, the debate is one of competing dogmatisms, which are barely disguised turf wars. A sense of judgement has gone out of the window.
The writer is president, Centre for Policy Research, Delhi, and a contributing editor for ‘The Indian Express’
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