Extracts from the Book ; Appointing our Judges: Forging Independence and Accountability

Apparently a great many people have forgotten that the framers of our Constitution went to such great effort to create an independent judicial branch that would not be subject to retaliation by either the executive branch or the legislative branch because of some decision made by those judges'. Sandra Day O'ConnorThe centripetal force, in the 1030 page decision of the Constitution bench of the Supreme Court, is undoubtedly the independence of judiciary. Without independence of judiciary, no meaningful democracy can sustain. This in effect is the central theme of the judgment which determined the constitutional validity of the 99th Amendment, 2014 and the National Judicial Appointments Commission Act, 2014.No amount of gloss, by the government or its spokesmen, could cover up the fact that both the Acts in effect seriously eroded judicial independence and sought to bring back political sanction and patronage to judicial appointments. In an extraordinary bout of candour, the former law Minister H.R.Bharadwaj, on being questioned whether politicians were trying to control the judiciary, his answer was an affirmative yes. "Is there any doubt about it? They have always been making attempts. I can show you examples of chief ministers and ministers trying to influence appointment of judges because they land in trouble very frequently". and he added " They want to have a convenient judiciary. But is it in national interest if you appoint convenient judges?" To those outside the orbit of the legal system, the government's intentions did not inspire much confidence either. The relentless attempts of the government to control appointments to the many public institutions like ICHR, FTII, the Nehru Memorial Museum, to name a few, brought deep resentments as the appointees were perceived as having no special qualification but subscribing to a political and cultural view point. These appointments were already mired in controversy, protests, face-offs and confrontation. To add to this the government was seen as attempting to rewrite history and influence the narrative in other fields as well. The all-round lack of faith and the perception that a biased political view point detrimental to the nation was being encouraged resulted in the scientific community, the historians, the litterateurs, the film makers returning of government awards as a sign of protest. From a very objective standpoint, there was no guarantee that the judiciary would not be molested in the clamour to appoint men and women sympathetic to the government or its philosophy.*********ON THE SPOILS SYSTEMKhehar J. observed that "our Constitution does not envisage the spoils system" which rewards those who worked towards a party's victory "as an incentive to keep the party in power". Its potential for destruction of democracy itself is immense. India is still a nascent democracy. It has to be remembered that India is perhaps the only postcolonial democratic experiment which has survived. Most postcolonial constitutions have collapsed under political and sectarian violence or to the force of arms. In large measure the credit should go to the judicial system which is viewed as apolitical. The credit is also due to the landmark judgment of Keshavananda Bharati where it was enunciated that basic structure of the constitution 'built on the basic foundation, that is, the dignity and freedom of the individual' was immutable. This in effect removed the threat of elected majorities destroying the rights which are treated as fundamental and a system of government which is democratic.**********THE AMERICAN EXAMPLE AN UNRELIABLE GUIDETime and again during the arguments allusions were made to the system of appointments in the United States. Subsequent to the judgment P.C.Chidamabaram stated, "It is nobody’s case that the US, Australia and Canada do not have independent judiciaries". Nothing could be further than the truth. It is so completely naive of the actual nature of the appointments process in America. The American Constitution, as it has been worked, gives immense powers to the President to appoint judges. In fact, judges are appointed by the President in the hope they will further his political philosophies in the judicial arena. In every politically charged litigation, the verdict of the judges is predicted on the basis of political affiliations. This in turn is predicted upon as to which President appointed them. This is not exactly a healthy situation in the Indian context.A particularly revealing passage by William Rehnquist a Chief Justice of the United State Supreme Court would baffle those who follow the Constitution here in India:'thus a president who sets out to pack the court does nothing more than seek to appoint people to the court who are sympathetic to his political or philosophical principles... Yet the institution has been constructed in such a way that, because of...

Extracts from the Book ; Appointing our Judges: Forging Independence and Accountability

Santosh Paul