An analysis on Justice Lodha statement - Independence of judiciary is non-negotiable

Understandably, a very outright notion but yet it establishes the whole crux of sustaining a “rightful” democracy in the opportunistic times. And restating such statement shows the anxiety of CJI Lodha that how much worried an eminent man is per se his knowledge of judicial misuse in past and experience of current situation which might give rise to similar situation again and let me clearly state his worry is fore on Judicial Appointments Commission Bill.

Let’s start with little history on what is meant by judicial independence and how it was breached and then eventually rectified. And when it was all well then why again we fell into same cycle?

What is meant by Judicial Independence? Example of IlBert Bill

Though there could be many earlier stances but let me detail on Ilbert Bill (1883) which can help us understand what is meant by judicial independence. This bill was introduced by Viceroy Ripon and was a controversial one in early British India times due to its proposal to allow Indian Judges the jurisdiction to try British offenders. 

There were different philosophies at that time supporting and rejecting the bill but let’s focus on one prospect which was most prominent. British tea and indigo owners were much concerned that Indian judges won’t overlook their mistreatment of Indian workers and thus were worried that criminal cases might go against them. So, the whole idea of appealing against such bill was to ensure that judge should support certain section of society despite they work against the ambit of laws. Henceforth, this law had to undergo amendments to allow 50% of European judges as jury. And hence I see it as classic example of dent in independence of judiciary.

How Constitution protects judicial independence? Aspects in constitution

Keeping such examples in mind the founders of Indian Constitution ensured that Judiciary should be independent. They put most effort to keep judiciary out of periphery of executive and legislatures and clearly remarked in Article 50 which directs state to separate judiciary from executive in public services. 

Though article 50 is Directive Principle to state and not very binding, constitution also provides other mechanism to ensure independence of judiciary through security of Tenure, fixed service conditions, restricting discussion on conduct of judges in Parliament or state Legislature and many more. But the most controversial is mode of appointment. Though this is regarded to ensure independence of judiciary but most misused and led to grave situations in post independent India.

What does Constitution say in Appointment of Judges?

It says the judges are appointed by the President after consultation of Chief Justice and other judges of Supreme Court and High Court as he deems necessary and consultation of Chief Justice is obligatory in appointment of other judges but not binding in all cases. For Chief Justice, there is no additional definition for appointment but till 1973, it was practice to appoint senior most judge onto this post.

What happened when everything was alright? Cases after 1973

Not long before but in 1973 such compromises with judiciary started. Then Prime Minister Mrs. Indira Gandhi was troubled with interventions of Supreme Court in Government policies particularly with Bank Nationalization case and Privy Purse case. Hence, she wanted to ensure an appointment of CJI who can work in favor of Government. The opportunity arrived with judgment on Kesavananda Bharati case (1973). The very next day of judgment, Chief Justice Sikri retired and President V.V. Giri on suggestion of Prime Minister appointment 4^th Senior most Judge Justice A.N. Ray as CJI. 

Reason of overruling top three judges was simple as they were part of bench which decided against the wishes of government. The outcome was simple too as new judge quickly waned judgments in favor of government. Notably Justice Ray was also part of the bench but voted in against of judgment. The government saw the opportunity in the wordings of Constitution which doesn’t made advise of current CJI binding on the President to appoint the next CJI. Hence, with favorable President, government was able to appoint CJI of its own choice.  Rightly, it was also termed as “the 

Blackest day in Indian History”.

Similar case happened in 1977, when M U Beg was appointed CJI superseding then senior most judge Justice Khanna whose judgement of upholding Right to Life even during Emergency in 1976 was not liked by the government.

Then the case of partisanship appeared when the verdict against Sanjay Gandhi was conveyed by District Judge in 1979 in case of ‘Kissa Kursi Ka’ but later overturned.

How was it be rectified? Genesis of Collegium System.

Eventually, judiciary itself stepped in to overcome the problem.

Firstly, in Minerva Mills case (1980), the apex court invalidated provisions of 42^nd Constitutional Amendment which prevent any constitutional amendment from being "called in question in any Court on any ground". Hence, the Court established the judicial review as basic feature of Constitution and hence cannot be taken away.

And then, the collection of three cases, collectively known as Three Judges Cases established a collegium system to prevent the whims of government in appointment of judges.

The second Judge Case (1993), ruled both on appointment of judges and appointment of CJI. In case of appointment of judges, the apex court ruled that the advice tendered by CJI would be binding on the President but CJI should advice after consultation with two of its senior most judges. And in case of appointment of CJI, it ruled that senior most judge should be the CJI. These steps definitely curtailed the government wings of appointing judges and CJI of its own choices and hence hindering the independence of Judiciary.

Furthermore, the Third Judge Case (1998), expanded the collegium system as a step of self improvement  by establishing the doctrine of ‘Consultation of Plurality of Judges’ where number of judges required for consultation for advising the President on appointments of judges was increased to four where majority on opinion was mandatory.

Why issues reappeared? Corruption and lack of transparency at the root

The issues of corruption came to limelight when noted Supreme Court Lawyer Prashant Bhusan stated that, “out of last 16 to 17 Chief Justices, half have been corrupt”. But, the serious allegations came into picture from people of collegium itself particularly from former CJI Justice Verma and former Supreme Court Justice Ruma Pal. Justice Verma declared that he wanted to probe in allegations on judges in certain cases  (particularly in case of Justice Punchhi) but political executive refused to allow this. Justice Ruma Pal went ahead by slamming higher judiciary and listed seven sins in the system which included grave issues like Hypocrisy and Nepotism.

In 2011, impeachment of Soumtra Sen (Judge at Kolkata High Court) for misappropriation of funds was huge dent in character of Judiciary.

Most recently in 2014, Justice Katju (again a former judge of Supreme Court), wrote extensively on improper compromises in the Collegium System of appointing judges which raised the question of accountability and lack of transparency.

What government is thinking to do now? Introduction of Judicial Appointments Commission Bill (NJAC)

In Aug 2013, then minister of Law and Justice, Mr. Kapil Sibal introduced Judicial Appointments Commission Bill for the composition, functions and procedure of the National Judicial Appointments Commission (NJAC). The commission hence established would have functions related to appointment, transfer and quality of candidates. Recommendations would be in appointment of CJI, other judges in Supreme Court, Chief Justice of High Court and other judges of High Court and transfer of Chief justice of High Courts and other judges of high courts.

Eventually, The Constitution (99th) Amendment Bill, 2014 and National Judicial Appointment Commission Act, 2014 is enabled to meet the objectives.

99^th Amendment inserts new Articles 124A, 124B, 124C and changes many others to accomplish its objective to provide meaningful role to judiciary.

Currently, 99^th Amendment bill has to be ratified by half of states and then assent of the President is required (though binding but yet a process) to come into force. Once this Bill becomes Act, it will abolish collegium system.

How NJAC can disturb the independence of judiciary?

Under Article 124A, the NJAC has six members of whom three are judges – CJI and two senior most judges. Other members are Union Law Minister and two eminent persons to be appointed by Prime Minister, Leader of Opposition and CJI.

In my opinion, there could be four issues here.

Firstly, inclusion of legislature and eminent person nominated by dominant legislature can result into deadlock in decisions when there is politically motivated agenda.

Secondly, infamous practices of Parliament might creep into the Commission as introduction of legislative in appointment and transfer process can lead to more corruption as legislative might start practice of buying commission members in order to secure votes.

Thirdly, there is question on selection of eminent persons. How good is to appoint people who could have less knowledge and wisdom (than to be appointed/transferred judge himself) to sit in process of transfer and appointment of judges. Reason of this assertion is there is no requirement that eminent persons on commission should have any knowledge of Law.

Fourthly, Article 124C enables Parliament to empower commission to make regulations for selecting judges and for other matters. Hence, it gives huge power to commission in a way.

My conclusive views

One right aspect could be from concerned sides that looking onto the opportunity of common enemy ‘Judiciary’ in troubled waters, thanks to its own people, the politicians have ganged and quickly (rightly used adjective when the passage of Bill is looked upon) clipped the wings of judiciary to try to infect the system.

But the change is inevitable.

I agree that collegium system was introduced to safeguard judiciary independence from whim of government but I would like to assert that that was quite a case of responsive act to what happened in 1970’s. Even earlier to that Judiciary had produced such a fine Judges and they have led to impressive judgement particularly in case of Kesavananda where Supreme Court established doctrine of ‘Basic Features’.  

But when collegium system has itself landed in allegations, then similar a reactionary step was bound to happen and this would always be same circle.

When we talk about the justification of NJAC, then it’s certainly not utterly non-sense. It has given equal provisions to Judges and other persons in commission. It has also tried to make the process transparent, commission responsible by introducing 3 non Judge members. It may lack to certain intricacies but important thing would be figure out those points and raise a concern and put pressure on government to fix them.

Even if we consider the situation globally, successful judiciaries in countries like the U.K., Canada, Australia judicial appointments committees have mix of executives and eminent people.

Another concerned side would be questioning the need of reinventing the wheel and horror remembrance of legislative involvement in judicial matter. The impression is to settle the issue with subtle changes in existing system and minimize the legislative involvement. One solution may be through, Venkatachaliah Committee suggestion of a five-member body consisting of three senior most Supreme Court judges, the Union Minister and one eminent person.

The petitions are already in Supreme Court to declare the commission illegal. Even if the judgement goes in favour of petitions but the court have to think on increasing demand of transparency and participation in judiciary system keeping it in balance with judiciary independence.