Why the Supreme Court is dead wrong and what it can do

Judges should have the humility to agree that they may be able to accomplish this only to an extent, as subjectivities are involved in judgments

Judges should have the humility to agree that they may be able to accomplish this only to an extent, as subjectivities are involved in judgments
Judges should have the humility to agree that they may be able to accomplish this only to an extent, as subjectivities are involved in judgments

Democracy will be no true democracy till the SC corrects its error of pursuing collegium system

No one disputes the need for judicial independence, though there may be multiple views on what constitutes judicial independence. Many views have been expressed by retired (and even current) judges, including those from the Supreme Court and HCs, politicians, and political commentators, on this subject.

No Constitution could ever be written comprehensively enough to provide for all the possible future situations that may arise. And ultimately humans have to interpret the clauses of the constitution. No wonder, Dr. B R Ambedkar said, the proper working of the Constitution depends less on the document and more on how it is implemented.

When we say we need judicial independence, we should also define, “independence from what/ whom”? We may not be fully correct if we refer to independence only from the legislature and executive. I may sound odd if I say, judicial independence should mean independence even from the judges themselves, which I will explain below.

Judges are humans. Judges should strive to make their judgments free from their biases and fallibilities. And judges should have the humility to agree that they may be able to accomplish this only to an extent, as subjectivities are involved in judgments.

The collegium system of appointment of judges to the higher judiciary, their transfer and promotions came into being, replacing their appointment by the government (in the name of the President) in consultation with the CJI and two senior judges, which itself evolved in the absence of any specific constitutional provision.

In most countries, including developed ones, the legislature/ executive is involved in a major way (if not fully) in judicial appointments and transfers; it is rarely, if at all, that judges themselves appoint judges.

The obvious reasons for this are:

  1. Judges are not elected by the people, as opposed to the legislature, which is the basis of democracy.
  2. If the legislature is grossly wrong on any major constitutional issues, over time, the electorate can correct it, but if the judiciary is grossly wrong on any major constitutional issues, and it keeps perpetuating itself through successive judicial appointments, there will be no check on the judiciary, which has the potential to destroy democracy.
  3. The dictionary says, “anything bred from closely related people or animals, especially over many generations, would lead to inbreeding, which is likely to eventually spoil the species”.

Even without the collegium system for the most history of judicial appointments, we have heard the accusations from the most well-meaning of intellectuals, including many SC and HC judges, that the higher judiciary has been only from some families, having some surnames, though no one accuses the judiciary of having done it on purpose. And the judiciary has been less representative of society at large, including in terms of gender justice, than most of the rest of society.

Enforcement agencies like the CBI and ED do give the impression of always acting against the opposition leaders, and rarely against the leaders of the ruling party. And when some opposition leaders join the ruling party, the cases against them suddenly appear to halt.

So, it is in the best interest of democracy that appointments to the EC, CBI, and ED are made by bodies with reasonably representative characters like the ones mandated by the SC.

But the question arises as to whether the SC itself, which is self-perpetuating, without involving the will of the people (in the form of the members of the legislature), has the legal, ethical, and moral authority to make such constitutional decisions.

Though the judiciary pulls up all the rest of the society, including the duly elected legislature, and corrects mistakes made by them, it is a pity that it has not introspected and corrected itself on the issue of appointments to the higher judiciary.

So, our democracy will be no true democracy till the SC corrects its error of pursuing the collegium system of appointments to the higher judiciary.

Given that it is difficult for the legislature to bring in a replacement for the collegium system, due to the extremely polarized and divided political scenario we have at hand unless the judiciary takes up this subject suo moto and re-evaluates NJAC Act that it wrongly struck down completely, and strongly recommends to the legislature to re-enact it suggesting the changes that would make it constitutionally acceptable to the SC, our democracy would be a faulty democracy due to the singular failure of the judiciary.

The current Chief Justice of India brings with him, a lot of experience, goodwill of the legal community, wisdom, and long enough tenure to sail such a legal reform through. If he does it, he will be remembered for this act of statesmanship more than any other changes he may bring about in the judiciary, which he is very likely to do in good measure too.

Note:
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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An Engineer-entrepreneur and Africa Business Consultant, Ganesan has many suggestions for the Government and sees the need for the Govt to tap the ideas of its people to perform to its potential.

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