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The ongoing war of words between the Judiciary and the Central government regarding the constitutional validity and the advisability of National Judicial Appointment commission is gradually unraveling the political side of our much esteemed judiciary in so far as the logical feebleness and a prejudiced ‘selectivism’ in the arguments put forward by the honorable judges is concerned. These are some of the most significant assertions made by the Supreme Court yesterday.

“When the 1993 judgment came and later in the Presidential Reference, you, the government, was the first one to agree about judicial primacy. You accepted it as your final position. You can’t change your position everyday”. – Justice Khehar

What is the compulsion now to change your stand?

Are you saying we were wrong in 1993?

The independence and impartiality of Judges is at stake. – SUPREME COURT

Unfortunately, all of these arguments fail to stand the scrutiny of the basic principles, rules and values which in general govern the polity of a modern democratic state which is invariably embedded to intricacies of environmental dynamism.

The whole ‘intellectual discourse’ appears to have a more of retrospective orientation. The constitutional validity of NJAC should be viewed more in terms of contemporary need and realities of time rather than what was originally mooted in the constitution by our Founding fathers or what was once determined by the Supreme Court in second judges case in 1993 and was accepted by the Government as its final stand on the matter. Actually there can hardly be anything unamendably final in polity and governance subject to the exception of some very basic principles and values. The contemporary notion of Good Governance is largely characterized by an upward mobility of authority and downward flow of accountability and admits no exception including judiciary. The imperatives of changing the procedure of judicial appointment apart, we should be ready (if situation is compelling) to reframe the entire constitution in pursuance of our collective interest because Constitution too, despite being the supreme law of the land, is not an end in itself.  

Perhaps, the only doctrine of Universal relevance is the Doctrine of balance and the course of evolution largely motivated by the need of identifying, acknowledging any sort of disproportionate change amid constituting units structures and values  so as to strike fine balance for goal accomplishment of higher order. It is not much plausible logically, therefore, as to how can there be something full and final with one time settlement in governance. We need to place the subject matter in proper perspective with an acknowledg- ement of public interest and aspirations at the top guided by clear avoidance of unnecessary departure from the core principles and values of the constitution and obsession as well with the same in the vicinity of crying need for a change. The extremes of both run the risk of leading to loss of instrumental value for public welfare. No doubt, in pursuance of consistency we need to guard against inviting stagnancy and on the other hand in the name of change and development we need to avoid upstaging the very basic time tested structural disposition which is designed to hold the very edifice of constantly changing changes.

How can there be a kind of perpetual agreement regarding the procedure pertaining to judicial appoint- ments. If Supreme Court can alter its stance within few months over the issue of transgender identity ; can take a U- turn on the question of assets disclosure by the judges on its website (it was  only after the intervention of Information Commission and the High Court, Delhi which delivered a landmark judgment and brought even CJI within the ambit of RTI that the Supreme court submitted) and can alter its doctrinal stance more than once over the amend ability of Fundamental Rights  to mention a few, why can not the government change its stance over what it agreed to in 1993  regarding Judicial appointments (a collegium system devised by the Supreme Court based on judicial primacy in the appointment of judges which though not in keeping with the provisions of original constitution consented to by the government). Today, if it is found to be in keeping with the unquestionable imperatives of bringing greater transparency, regularity and accountability in the matters of judicial appointments which inter alia constitutes the first requirement towards the development of a more efficient, competent and ethically upright judiciary, why is it being subjected to so much of hue and cry? 

Further, the honorable SC has to accept the principle that it is not necessary in governance to seek changes under compulsion only which means that the  government enjoys the prerogative of pursuing change in the existing order as a part of creative incrementalism or rationalization of things in sync with growing aspirations of people. Besides, it is not much difficult to identify compelling situation to go for the replacement of the existing system of appointment in the wake of more than one instances of irregularity in the appointment and promotion of judges. Had it not been for the ‘prohibitive intervention’ of the government, Mr. Dinakaran (despite dubious antecedents) would have got promotion to the Supreme Court. Unfortunately, the Supreme Court which is otherwise found to be so active in upholding probity in public life preferred a dignified retreat when it was publicly alleged by a well known senior counsel that more than half of the CJIs since independence have been corrupt. It is secret to none that the ‘hydra-headed’ monster of corruption has reached the sprawling corridors of higher judiciary as well in more or less same denominations as is found elsewhere which includes pecuniary or non pecuniary ‘quid pro quo’ arrangements, deliberate reciprocity between bench and bar for self- aggrandizement and others. Judiciary therefore cannot be treated as a ‘transcendental’ island of professional integrity and ethical propriety. In fact, the canons of behavioral propriety and procedural standards in terms of fairness, transparency and accountability in Judiciary should be far more ‘austere’ compared to others given its highly esteemed stature as the ultimate interpreter and the guardian of the constitution, the last word for justice. The ‘reformative embrace’ of Good governance cannot and should not remain confined to legislature and executive only though there can be some justification for appropriate instrumental differentiation for Judiciary given the technical complexities and challenges pertaining to its role and functions.

It is to be noted that the concept of independence of judiciary and judicial accountability are not ‘mutually exclusive’ in nature. Independence of Judiciary constitutes one of the components of ‘Basic structure’ and therefore it is not amenable to any regressive alteration under legislative exercise. There are more than enough constitutional safeguards to protect independence of judiciary. But on the other hand, the constitutionally ordained mechanism to enforce accountability of judges is extreme in nature and lacks the necessary wherewithal to address those judicial ‘misdemeanors’ which despite being serious in content are found to be deficient to warrant initiation of impeachment proceedings.

We are not saying that you were wrong or right in your judgment in 1993, rather such notion of right or wrong largely emanate from constantly evolving factors of time and situation. We do not become right or wrong simply because of the ‘intrinsic’ value of our judgment  but also because of shifting bases of evaluation, changing value system and perception of things ,rising aspirations and many other variables which in the form of a complex matrix of dependencies tends to bring right out of wrong and wrong out of right. 

Further, it is to be noted that the members of higher judiciary are not immune to deficient rationality and objectivity in individual or collective capacity. What has been in continuance for long may not always provide a justification for its continuance in the present.

The moral and ethical strength behind the all pervasive and celebrated judicial activism is bound to suffer if it is not turned a little inward so as to set a precedent for all. The honorable Supreme Court is so heavily armed with its own doctrinal constructions (Basic structure), constitutional safeguards, statute pertaining to contempt of court and most of all public trust and confidence that the political cost of any attempt to interfere with the independence of judiciary could be very high for any government. The honorable judges therefore must reflect ‘judicial statesmanship’ by ‘shedding off’ all inhibitions, the combative mode of you and we kind of thinking to create enough space for collective endeavor with the government to bring desirable reforms in judiciary not only in the sphere of appointments but also in terms of better accountability, ethical standard, professional competence and due efficiency. One should not forget that the much esteemed activism of judiciary to a great extent is silently orchestrated by the Doctrine of checks and balance which does not admit ‘selective application’ in the constitutional scheme of things.

The prodigious edifice of our vision of peaceful, powerful and prosperous India occupying a deserving place in the comity of nations would become too heavy to be sustained unless it is ‘inter alia’ held by an independent and competent judiciary deriving its strength not so much from the powers ordained by the constitution as from its quality of judgment, democratic dynamism and the quintessential uprightness with a great inspiratorial flare.  


Director, IIIASA