Rajkumar Banna Singh, Member (HCBAM)

Parliament with rare political unity passed the NJAC act. It was right on two grounds. It had the power to pass such law; and the Law was premised on the sound thinking that the appointments process needed to be broadened. But parliament over-reached in a design and institutional sense, to put the collegium system comes to an end. Eminent Jurists have raised important questions about the efficacy and constitutionally questionable character of these measures.

The Supreme Court striking down of the 99th Amendment (National Judicial appointment commission Act (NJAC) as unconstitutional has basically asserted the Independence of the judiciary. The purpose commission violates the separation of powers between the judiciary and the executive, which the apex court rightly holds, is fundamental to the basic structure of the constitution. This is of course, not the last word on the issue, since the Government can well file a review or curative petition. However, a line has been drawn by the ruling of the constitution bench, which will be hard for the Government to step over. While the demand for the NJAC began with the observation that the standing of the judiciary has been reduced in the eyes of the public by pervasive inefficiency and embarrassing instances of corruption, it is now asserted that better functioning of the judiciary must not be secured at the expenses of its independence.

Both these baseline and objections to the colligium systems are fairy vintage. Judges to the higher judiciary are appointed by the president in consultation with the Chief Justice of India, which is a polite way of saying that the former accedes to the latter’s wishes. This gracious tradition must persist for obvious reasons.

Allow me to narrate a line-when I was studying LLB 1st year in Govt. Law College Bombay now Mumbai, in the year, 1973 Professor (L) Nani A. Palkhivala (no need to introduction) used to deliver in class room lecture that quote “The Constitution provides for a council of Ministers to simply “aid and advise” the president. It does not say that the advise is binding on the president. This issue was raised by the First President Rajendra Prasad soon after the constitution came into force. Then attorney general M.C. Setalvad opined that, notwithstanding the language used the President was bound to the advise of the council of Ministers” unquote- practically, this view was also endorsed by the Supreme Court in its Seven judges, judgment in Shamsher Singh.

Let me take the liberty of putting these question – If the advice of the council of ministers deemed to be binding on the president, then why would not the advice of the collegium be binding on the president in the same manner.

Can a litigant select a judge to decide his own case? If not how can a government be given a direct role in the selection of judges, given that one of their main roles is to judge the government‘s actions? Its role should be confined to giving important and useful inputs to the judiciary about the persons being considered by the collegium.

It is strongly believe that it is possible to appoint honest, knowledgeable, able and objective judges capable of rendering much quicker justice through a more robust, transparent and consultative collegium system. It is gratifying to note that the National judicial appointments Commisision judgement itself accepts the short comings of the collegium system and has posted the matter for a “consequential hearing” in November to determine how it can be improved.

What is invited less attention, however, is why and how judicial independence matter, and various crisis that affect India’s judicial system. Appointments to the higher judiciary are, in fact, a small part of the problem and an excessive focus on them distracts from larger issues of legal and judicial reforms. What demands focus is the judicial process more generally, and attention towards it clarifies both the ideal of judicial independence and the present disenchantment with the judiciary.

Judicial legitimacy in any modern constitutional democracy is structured around process. Unlike politicians, who draw their legitimacy from the electoral success and the popular mandate, judicial power is sustained through a range of procedural mechanisms. Such mechanisms are meant to legitimize verdicts regardless of the specific outcome delivered, and are revealed in a range of formalities and rules that structure and govern the judicial process. Rules about being represented by counsel, the right to fair and impartial hearing, the importance of speedy trial, the determination of evidence, the nature of proof, the relevance of a cause of action and so on aim to ensure that rulings are legitimate in the way in which they come about. At the heart of this aspiration is the idea of judicial reasoning.

Judges are held accountable and their reasons are legitimized through processes of reasoning - their respect for precedent and treating of like cases, alike, use of certain techniques of interpretation to understand ambiguous texts, mode of argument and claims of why some arguments succeed over others and so forth. It is this fact that makes courts unique sites of public reason.

It is in this context that judicial independence matters. The ideal of judicial independence is not grounded in consequential beliefs about better substantive outcomes. Instead, it is linked to the idea that, in order for the process to retain its integrity, judges must be immune to certain kinds of considerations and must exercise their judgement solely on the information presented by the parties before them. The accountability of judges is not to the political process but instead to the ideal of rule of law. The form of accountability for judges is distinct from that for politicians, and is principally found in the reason giving character of their role. The major intellectual crisis facing the Indian judiciary is not the appointment of particular judges and the fact that the institution has nearly complete say over succession. It is, instead, that the culture of judicial reasoning and the sanctity of judicial process, upon which accountability and the legitimacy rest and which the judicial independence is meant to serve, has broken down. The origins of this collapse lie in the Public Interest Litigation (PIL) era. Although the PIL movement brought attention to matters that were shamefully ignored, often energized an otherwise uninspired executive and amplified the voices of the courts, it came at the cost of sacrificing those very elements that make courts what they are dilution of standing requirements, ongoing supervision that removed finality from the judicial process and consultative style of adjudication that depart from norms of reasoning, all contributed towards changing the character of courts. The present disenchantment is, to a large extent, a function of this intellectual crisis, where we no longer like the decisions that courts offer and with the breakdown in norms and reasoning, are no longer satisfied by the process by which the decision have come about. The point is not that judges are unaccountable because they are self-selecting. If they have become unaccountable, it is because central tenets of the rule of the law themselves have been jettisoned.

The second major crisis is a more institutional one, and relates to judicial capacity and the sheer ineffectiveness of the institution. The pendency statistics are a scandal, with around 65,000 cases currently before the Supreme Court alone. The number of courts and judges tell a similar horor story. In the United States there are over a hundred judges per million citizens; in India the number is roughly 10 (Ten). A consistently embarrassing budgetary allocation for judicial institutions and failure to increase courts and capacity has meant that, in India, judicial process is often the punishment, a fact brought out most starkly by the state of under trials. This crisis is part of a larger narrative of failing state capacity in Modern India, and to believe that a few better judges is what judicial reforms means is akin to believing that a couple of new IITs can remedy India’s higher education woes.

The excessive focus on appointments and the absence of any mention of serious reform make these new measures appear less about judicial accountability and more about powers. They appear as attempts to curb judicial independence without any serious introspection over what role the judiciary ought to play and how independence and accountability interact. What the twin crisis-the intellectual crisis in reasoning and institutional crisis in capacity-have done is drawn the integrity out of the judicial process. Justice is now politics by another name, or quite simply about luck. Until the nature of this crisis is fully understood and reforms focus on what matters, little will change, regardless of a few different judges in the Supreme Court. The flawed and troubling composition, the new measures prescribe for the National Judicial Appointment Commission Act are likely to make things much worse-but, whatever they may or may not achieve, rest assured they aren’t about legal reform.