Context:

We have yet another controversy surrounding the Supreme Court, with the collegium revisiting decisionsmade at an earlier meeting and recommending the elevation of two junior judges to the Supreme Court.

No one has any doubts about the competence or integrity of Honourable Judges, but the manner in which it was carried out puts the spotlight once again on the controversial collegium system of judicial appointments.

This seriously undermines the independence of judges and raises unnecessary doubts about the credibility of the highest court as the government is not only the biggest litigator but also the greatest threat to the abuse of power.

Judicial review as a concept is supposed to control the government and keep it in check.

How has this panned out in the past?

Let’s look back at the Justice K.M. Joseph case. He had struck down the Modi government’s imposition of President’s rule in Uttarakhand and saw the government returning the recommendation for his elevation to the Supreme Court to the collegium and his appointment was cleared.

This time the government not only did not return the recommendation to the collegium for reconsideration, but approved the appointments instantly.

Learnings from the past:

Take the case of Justice A.N. Ray, who was appointed Chief Justice of India (CJI) in 1973 superseding three senior judges, or Justice M.H. Beg, who was appointed CJI superseding Justice H.R. Khanna in 1977.

Both Justice Ray and Justice Beg were excellent judges, but favoured the government.

They were considered not forward-looking judges but judges who looked forward to the office of the CJI.

In the bank nationalisation case (1970), while as many as 10 judges went against the government, Justice Ray approved the government’s action.

Similarly, Justice Beg, in the Indira Gandhi election case, held that while democracy is the basic structure, free and fair election is not.

Recently, Appointment of the Judges:

• The National Judicial Appointments Commission (NJAC) was struck down by the Supreme Court because it would have compromised the independence of the CJI and given a role to the government in the appointment of judges.

• Unlike in the U.S. where judges are appointed by the President and are known to be leaning towards the Democrats or Republicans, Indian judges are not supposed to have any political affiliation.

• The main reasons stated by the Supreme Court in the Fourth Judges Case for striking down the Ninety-Ninth Constitutional Amendment Act (and consequently the NJAC Act, 2014), were as follows:

• That the inclusion of the Chief Justice of India along with two next senior Judges of the Supreme Court did not provide adequate representation to the judicial component in the NJAC.

• Judges felt that NJAC was insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges. This was in violation of the principle of ‘independence of the judiciary’.

But is it possible to completely insulate judges from governmental influence?

The answer is no — as George Orwell pointed out in 1984, the government is everywhere, and judges as fellow human beings do get influenced by it. The judiciary asserts its position only when the government is weak.

This collegium system was asserted when we had weak Central governments in the 1990s.

Power and influence: Danger of Reciprocity:

‘Power’ and ‘influence’ are fundamental concepts in society. ‘Influence’ is sometimes considered to be an aspect of ‘power’.

Indira Gandhi was influential because she was powerful. Present government is, similarly, not only powerful but hugely influential.

According to the American sociologist, Alvin Ward Gouldner, the universal norm in human societies is that individuals are obligated to reciprocate favours received.

Gouldner articulated the “norm of reciprocity” in the following manner: “people should help those who have helped them” and “people should not injure those who have helped them”.

Is NJAC reflected the Issue of Reciprocity?

In his NJAC judgment (2015), Justice J.S. Khehar discussed the issue of reciprocity at length in striking down the commission.

Justice Khehar therefore preferred exclusion of the political executive from the appointment of judges as a feeling of gratitude towards the government impacts the independence of the judiciary.

It was for this very reason that even B.R. Ambedkar wanted to insulate the judiciary from political pressures.

One of the new trends was the change in the approach of the court with a view to give tilt in favour of upholding the orders of the government.

Under the cover of high-sounding words like social justice the court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases.

The prospect of a 15-judge bench overturning Kesavananda Bharati vs. State of Kerala (1973), which outlined the basic structure doctrine of the Constitution, does not look too remote in the near future if the government continues to exert pressure on the collegium and if the collegium, due to reciprocity, does not effectively assert its power and independence.

Conclusion:

Most governments prefer pliable judges but many of our judges remain wedded to their oath and decide cases without fear or favour.

True reciprocity affects humans but since our judges are addressed as ‘Lords’, let them not have any feeling of gratitude towards anyone.

Independence, impartiality and fearlessness of judges are not private rights of judges but citizen’s rights.

Ultimately judicial legitimacy and power rests on people’s confidence in courts.