By Madhulika Gupta
The executive, legislature and judiciary form the pillars of democracy in a country. The newest, fourth pillar is the media. If one of these pillars loses its strength, there is a good chance of the democratic nation crumbling down to pieces. Surprisingly, when the judiciary faces an allegation of conflict of interest, the citizens of the country have no other door to take their pleas to.
Former US President Andrew Jackson best highlighted the idealism of an independent judiciary, All the rights secured under the Constitution are worth nothing, except those guaranteed by an independent judiciary. However, when the Chief Justice of India, the “guardian of the judiciary” himself is brought under the scanner with serious allegations made about his job, the need for a public dialogue on the judiciary starts to grow immensely.
The crisis unfolds
On the chilly evening of 12 January 2018, the prime time news on the television screens was replete with the crisis that had deluged the highest court of India and perhaps, the judiciary in its entirety. The Supreme Court of Indias four senior-most Judges (that also comprise the Collegium along with the Chief Justice of India) made a shocking statement in a joint press conference. They collectively made their plea public about the judiciary and its sanctity being under threat.
Justices J Chelameswar, Rajan Gogoi, MB Lokur and Kurien Joseph jointly voiced their concern about the less than desirable things that had happened. Termed as an extraordinary event in the history of Indian judiciary and independent India, Justice Chelameswar unveiled that all was not well with the high ranks of the judiciary.
At the end of the brief press conference, a letter signed by the four senior-most judges and sent to the CJI two months back highlighting their plea was released to the media. The Justices termed their efforts as failed when they couldnt successfully persuade Justice Misra to consider the distress in the judicial administration and allotment of publically important cases to junior Judges. There also were speculations about the displeasure being caused due to the way the case of Special CBI Court Judge BH Loyas mysterious death was being mishandled.
This event put the Indian judiciary, as an institution, to shame when the topmost Judges of the Supreme Court had to hold a press conference to convey it to the nation that the institution’s sanctity needed to be preserved, that they had no choice but to communicate it to the nation in order to clear their consciences.
The independence of judiciary: A mere farce?
The executive and the legislature are accountable to the public, based on the ethos of of the people, for the people, by the people. The judiciary, however, is completely independent in its working and its decision making abilities.
An independent institution, the judiciary has powers that enable it to put the executive and legislature in check, should either one of them overstep their jurisdictions. Its members ideally ought to practice and preach impartial treatment of all and fairness at all costs. Any deviation from this and the integrity of this institution is bound to land itself in serious jeopardy. With the current turn of events, the institution has been mocked for its independent stature.
On a contrasting note, it is almost amusing to observe how judicial appointments are made. There is no formal process in place for judicial appointments: They are made solely on recommendations. The incumbent CJI recommends a senior Judge to the President of India to be his successor. The appointed CJI then nominates other Judges to the Supreme Court along with the Collegium. The judicial appointments are neither the judiciarys forte nor the executives.
That being said, the judiciary is supposed to safeguard the common folks rights and uphold the Constitution. But there is no watchdog for the Apex Court. How then, should the masses be assured of a free and fair trial for all when the judicial honchos are not accountable to anyone?
The NJAC Act: A platform to raise public opinion
In 2015, the proposal to set in place a National Judiciary Appointments Committee (NJAC) Act was rejected by the Supreme Court. The Collegium outrightly discarded the plea to pass the Act. Surprisingly, the only Collegium member to stand by the Act and defend the warrants of the Act was Justice J Chelameswar.
Consequently, it was decided that the Collegium system would continue, where the appointments to the Supreme Court would be made by the recommendations of the Chief Justice of India and the four Collegium members of the Apex Court.
The current system poses questions of unfair treatment when it comes to appointing Judges to higher ranks. There is no accountability of the decisions with regard to appointments. An independent system and institution, there is no way to question the CJIs appointment of the Judges, who happen to be one among them.
The Act, if passed, would have made judicial appointments a well-defined process where the judiciary would be appointed by an appointments committee. The appointments to the Supreme Court and the CJI would no longer be made behind closed doors but would be made by a team of 5 people, comprising of the Prime Minister, the Chief Justice of India, the Minister for Law and 2 other eminent people who would be elected to the office every year.
However, the NJAC Act too had its flaws. How can the sanctity of the judiciary be maintained if two members of the Executive hold the decision to make or break judicial careers? This is a debatable question before the thought of bringing something like NJAC comes up again. Ultimately, the plea to replace the collegium system of appointments was quashed by the then Chief Justice of India, Justice RM Lodha, unanimously.
For the people, by the people
There is a lack of transparency and accountability in the judiciary, which is a monumental reason as to why there is a discussion about bringing the judicial operations into the public domain. The question is, would it be fair?
Since India is a republic, there is no individual above the law of the land. This applies to the members of the judiciary toothe watchdogs of the Constitution. Hence, being answerable to the people and being accountable for their administrative decisions becomes discernible.
The use of a jury, as in the US Courts, brings the public to a domain where their word influences the Judge’s decision. In a way, the people are given a part of the power. However, the ultimate power rests with the Judge.
On the other end, interaction with the masses and society is not the way the British law worked, the majority of the system that India follows even after 70 years of independence.
On a contrary note, any deviation of the masses from the majority sentiment is reason enough to scrap the thought at its face value. This was also the reason why the NJAC Act was rejected. The Act proposed to appoint two eminent people from the public sphere to the appointments committee. Would a person exposed to the public life be wise and knowledgeable enough to have an impartial and fair say in the judicial functioning? Even if it is considered that they are and their vote counts for the masses, would there not be a conflict of interest?
When it comes to the issues ranging from the allocation of high profile and publically important cases, the succession of Judges to the promotion of Judges to Justices and the appointment of Chief Justices of High Courts and the Supreme Court, a public dialogue can be a healthy change. By doing so, accountability of the Collegium and Judges to the public would increase, making the system more transparent thereby restoring the trust of people.
If there is a crisis in the judiciary at the moment, opening the gates of dialogue to the public can stop the Judges and Justices from taking undue advantage of the system to benefit them and fellow Judges. Increasing institutional transparency seems to be the only hope for Indian citizens right now.
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