In the present day all litigations, where big revenue is at stake, are confined to the high courts and the Supreme Court. Till the advent of Public Interest Litigation (PIL), the judiciary was concerned primarily about disputes between private individuals and corporations, among themselves, and between them and the State – litigations for enforcement of rights or liabilities. Litigations, therefore, were primarily on matters of contracts, property, tax and criminal laws. However, the PILs changed the role of the judiciary. It ceased to be confined to enforcement of rights and obligations or punishment of offenders. PILs meant the courts are acting in substitution of the executive and legislature and becoming the ultimate arbiter in matters of policy.
The question whether such jurisdiction as super government and super legislature could be invested in the courts undoubtedly is a predominant question. The emphatic answer is that courts are invested with no such jurisdiction. What is done these days in the name of PIL is acting in substitution of the executive and the legislature, nay, as if the judiciary is the executive and legislature all at once. This is against the Constitution and democracy. However, I do not intend to go into that aspect deeply because if I venture to do so, this article will become more of a discourse on jurisprudence.
In entertaining PILs and wearing the robe of the executive and the legislature, the Supreme Court and high courts undoubtedly brought in many reforms of great public good. But the courts sporting the role of the executive and the legislature, which is not invested in them by law, has many fallouts. The first and foremost is that it has resulted in the very destruction of the judiciary as an impartial administrator of justice. We inherited from the British a wonderful legal system, respected for its impartiality and independence manned by highly qualified, erudite and competent individuals. The independent judiciary was found to be an obstacle by the late Indira Gandhi. She tried to tame it and the courts resisted it. Gandhi had no qualm to publicly declare that she wanted a committed judiciary. She asserted the primacy of the executive in the matter of appointment of judges to the higher judiciary. Since then the appointment of judges to the Supreme Court and the high courts became a matter in controversy.
The Supreme Court, in the Judges-2 case, which was a PIL, overruled the seven-judge Constitution Bench judgment in the SP Gupta’s case and held that in the matter of appointment of judges to the higher judiciary, the Chief Justice of India (CJI) will be entitled to primacy. There was a rider though that the opinion of the CJI is the opinion of the collegium of senior judges, of which he is the head. The judgment in Judges-2 case was no interpretative gloss of the constitutional provisions. It meant rewriting of the Constitution. It may be difficult to fathom that the government did not question the jurisdiction of the court or the maintainability of the PIL by the Supreme Court Advocates on Record Association (SCAORA). Still strange is, when the government made a Presidential Reference under Article 143 of the Constitution, it did not question the jurisdiction of the court to rewrite the Constitution. Astonishingly, the government accepted the introduction of the collegium system, unheard of in the legal history of any country. The then Attorney General made it expressly clear that they are not seeking a review of the judgment in Judges-2 case. The Judges-3 case was only about the procedure to be followed by the collegium and its strength.
The legal fraternity, except legendary justice Krishna Iyer who foresaw that it would lead to oligarchy, welcomed the judgment in Judges-3 case. The political class also did not criticise the judgment much. The public at large probably thought that we will have a system where the very best, the most meritorious and men of character would be appointed as judges. However, it did not take much of a time for the said hope to be proved wrong. The power, which the courts could assume in the name of PIL, enhanced the authority, power and prestige of the office of a judge of the Supreme Court or the high court. Many of the judges and legal luminaries actually wanted the son, daughter, nephew, niece, uncle, their progeny and near and dear ones, to be appointed as a judge. The judgment in Judges-2 case introduced a concept of legitimate expectation, namely, elevation as the chief justice of a high court or as a judge of the Supreme Court on the basis of seniority. Sitting or retired judges and the class of legal luminaries realised that it is important to secure a berth for their kith and kin in the higher judiciary at the youngest possible age. This was a guarantee that their progenies will rule high courts as senior judges, reach the Supreme Court and would even become CJI. The judgments in Judges-2 and Judges-3 cases meant an end to the selection based on merit and integrity. The collegium system meant to be a synonym for nepotism, favouritism, oligarchy and what not. Till the judgment in Judges-2 case, the executive had the primacy in the matter of appointment of judges to the higher judiciary, but except for a few exceptions the executive acted upon the recommendations of the CJI. The collegium system introduced as a remedy for the so-called spoiler systems, namely, that a political party elected to power will favour their supporters by judicial appointments, has proved to be counter-productive. It was in the above backdrop that the demand from different quarters for a Judicial Appointment Commission, ideally independent of both the executive and the judiciary, was conceived. To make it possible, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short) were enacted.
The NJAC contemplated these Acts, though a step in the right direction, could not have meant a Judicial Appointment Commission independent of the executive and judiciary. The major defect of the Commission was that it was still not independent of the judiciary. The NJAC was to be a six-member committee headed by the CJI, the other members being two seniormost judges of the Supreme Court, two eminent persons to be nominated by a panel consisting of the Prime Minister, CJI, Leader of the Opposition and the law minister. The NJAC thus conceived was a collegium, which has lost some of its primacy, but still one where judges have a predominant role. It is unfathomable that the judiciary could be unhappy with the NJAC. But the elite class of lawyers, who had a great role in the collegium system, considered NJAC as a threat to their vested interests. They accordingly used SCOARA, over which they have dominant control, informal though, to attack and discredit the NJAC. The NJAC was thus quashed before birth.
Till 2015, appointment of judges to the higher judiciary was primarily an issue where the senior judges of the Supreme Court and so-called legal luminaries mattered. The general public, nay, even ordinary lawyers, were not much aware that the judges , who granted themselves the power of appointment of judges, used it to appoint their near and dear ones. Even strong political links or association with bog industrial houses nattered for the coveted posts. The National Lawyers' Campaign for Judicial Transparency and Reform — of which I am a part — an association of ordinary lawyers, mostly the first generation lawyers, sons and daughters of the common man, the farmers, teachers, petty traders, workers etc., felt that the time has come to bring the truth to the fore. The forum chose to do whatever it could to avert the justice delivery mechanism being further monopolised. Its president Mathews J Nedumpara intervened in the NJAC case and questioned the very maintainability of the PIL, pointing out that appointment of judges is a legislative policy. He also pointed out that if it is an issue which is justiciable, then the pertinent question is whom should the courts hear? Are not the 129 crore people, citizens of the country? Could a few elite lawyers sitting in Delhi alone be heard and the case be decided in one way or another?
Apart from raising the legal issues, Nedumpara produced a chart titled The Progeny Judges Syndrome, which showed that 50 percent of the appointments in the higher judiciary are kith and kin of judges and other influential people. He brought to the notice of the Constitution Bench that the apex court and the high courts are literally dominated by the kith and kin of judges. Ironically, judges who are elevated from the subordinate judiciary, the vast majority of whom are first generation lawyers, retire as junior judges with hardly any occasion to head a Bench handling PILs, an arena where judges exercise vast power. But unfortunately, Nedumpara was not given due opportunity to be heard. The so-called legal luminaries opposing the NJAC and those who are supposed to be supporting it, being representing the Central and state governments, but who in the heart of their hearts supported the collegium system, did not allow him to be heard. What little the NLC could achieve is bring to the public domain the issue of monopolisation of the higher judiciary. That has meant the judges being forced to acknowledge that there are shortcomings in the collegium system and it needs improvement. Accordingly they authorised the government to prepare a Memorandum of Procedure (MoP) for appointment of judges, which will deal with (i) Transparency, (ii) Collegium Secretariat, (iii) Eligibility Criteria and (iv) Complaints.
Could something more unfathomable than the so-called MoP be conceived after striking down the NJAC Act? Today the institution of judiciary is the monopoly of a few families, either as judges or senior advocates, and the cases they decide are primarily of the rich and the mighty. The ordinary lawyers and citizens are totally discriminated. By establishing a Judicial Appointment Commission, independent of the executive and the judiciary, the dream of a judiciary which serves the people would be achieved.
The author is general secretary, National Lawyers' Campaign for Judicial Transparency and Reform. Views are personal.