<div><strong>A.S. Chandhiok </strong><br> </div><div>In the past few days, the Supreme Court (SC) has been expressing constitutional disappointment. The government was called upon to update the court of the steps it had taken to implement a Uniform Civil Code as decreed by Article 44 of the Constitution of India. Incidentally, the State of Goa is the only state in the country having a Uniform Civil Code, and it is working well. </div><div> </div><div><table align="right" border="1" cellpadding="2" cellspacing="2" style="width: 200px"><tbody><tr><td><img alt="" src="http://bw-image.s3.amazonaws.com/chandioke-200.jpg" style="width: 200px; height: 231px; margin: 1px;"></td></tr><tr><td><strong>A.S. Chandhiok </strong></td></tr></tbody></table>Unlike the instances in 2G and coal case, in the Sanjeev Rajendra Bhatt’s case the Apex Court refused to constitute a Special Investigation Team (SIT) last week and remanded the matter back to the trial judge. And yet in the same week came the much-awaited judgment of the Constitution Bench striking down the National Judicial Appointments Commission Amendment Act (NJAC). The three decisions dealing with three distinct matters, if put together, establish one predominant fact, namely, judicial review is a constitutional affair and the decisions by the SC are not given for any political or extraneous reasons, but juridical alone. </div><div> </div><div>All the three decisions are in accordance with the traditions, the discipline and the constitutional and statutory interpretation of law.</div><div> </div><div>In the NJAC case the apex court following the past precedents came to the conclusion that independence of judiciary is a paramount part of the basic structure of the Constitution. No Parliament can amend the Constitution so as to take away, abrogate or destroy its basic structure. The judgment running into over a thousand pages nullified the Amendment Act on the ground that it violated the basic structure of the constitution, thus invalidating the first constitutional amendment and law sought by the present Parliament.</div><div> </div><div>Over the years, one has seen on our television screens what actually has been happening in our parliamentary sessions, both in the Rajya Sabha and Lok Sabha. What the present party in power was doing in the last regime as the Opposition has come to haunt it with the present opposition playing out the same shenanigans. No parliamentarian, it is apparent, has thought of ‘we the people,’ who have constituted and elected them to the parliament for the welfare and well-being of the people. Acts are passed without discussion, the last one being the Delhi High Court Amendment Act 2015, the only Act passed by the Parliament in the last session, which cost the public exchequer around Rs 260 crore. </div><div> </div><div>Judicial review therefore takes a more serious and important role to play where other compartments of the Constitution do not care to look at their responsibilities and do not discharge the obligations cast on them. The judgment on the NJAC Act which was ratified by 20 State assemblies restores the collegium system of appointing Judges to the Constitutional Courts. The framers of the Constitution had given a serious thought to make the executive, the legislature and the judiciary strong and vest them with necessary prestige and authority to ensure full democratic freedom. Working of democratic governments across the world makes it clear that the executive, the legislature and judiciary are not exclusive in their authority and functions, but are complimentary to each other with clearly defined functions. The Constitution provides for an independent judiciary to resolve the inevitable disputes over the boundaries of constitutional powers, which arise in the process of governance and has therefore entrusted them with the exclusive power of judicial review.</div><div> </div><div>In terms of Article 141 of the Constitution a judgment of the SC is the law of the land and binds one and all. One hopes and prays that instead of going either before the Hon’ble Court in an adversarial mode or taking any steps in the Parliament to undo what has been done by the Apex Court, the government would seek an advisory opinion and may prevail upon the Hon’ble Judges to have the assistance and recommendation from the Advisory Committee. The same may not be statutory, yet will help and assist the Collegium/Judges in appointing judges on merits alone. There are enough opportunities for one and all including the government, to urge ways in which the collegium system may be made transparent and progressively reformed and the selection process improved.</div><div> </div><div>While some may not agree that Hon’ble Judges alone should appoint judges, but once the independent judiciary is an essential feature of basic structure, then the best way to move forward is to improve the said system with modifications and changes which may work well.</div><div> </div><div>The Hon’ble Chief Justice and members of the Collegium who are virtually the appointing authority, could themselves create a judicial appointments committee to help and advise them in exercise of their function to select the best hands for the constitutional courts. They may work out the mode and interaction between them. The judicial appointment committee may include wide ranging constitutional dignitaries, viz., Chairman of the Rajya Sabha, Speaker of the Lok Sabha, Leader of the Opposition or the largest single party, a representative of the legal profession, the Attorney General etc. In the State, the Attorney General could well be substituted by the Advocate General, besides members from the Bar.</div><div> </div><div>The time has come for an active interaction with those outside the judiciary, to ensure that eligible and suitable persons are not overlooked and, of course, no wrong appointment is made for want of proper information. The proposed Judicial Appointments Commission, in which the CJI is a member along with two judges—as recommended by Law Commission of India some years ago—could have been a solution. However the amendment was challenged before the Supreme Court (known as the 2-judges case) soon after. It did not look realistic and was struck down. In this context, it is absolutely necessary that the judges of the apex court introspect (keeping in view past experiences) and ensure enough checks and balances when appointments are made by the collegium. </div><div> </div><div>A crisis of confidence is today threatening the very foundation of every institution; the judiciary is not far behind. The one legacy of the Raj that India could be proud of was an independent judiciary which maintained high standards of integrity. In recent times, the Bar and the public have been hearing instances of corruption, nepotism and other misconduct by judges across the country. The judges may look at the provisions of the Constitution’s 67th Amendment Bill, 1990. The said Bill was rejected; an opportunity of effective reform was lost, and has never come again.</div><div> </div><div>The matter is listed for further consideration on November 3. Let us hope the best suggestions come forth and are considered by the Supreme Court and the central issue of democratic accountability is also addressed.</div><div> </div><div>I am optimistic that the suggestions made on the next date of hearing would be taken note of by the Apex Court and modes and modalities will be worked out to make the collegium system work to the satisfaction of one and all.</div><div> </div><div>The government has extended its hand and the recommendations made by the collegium after the judgment of the Constitution Bench have been forwarded by the government expeditiously for approval of the President of India. The unity of the Executive and the Judiciary with the help of the Legislature can bring about a much awaited change in the appointment of judges. </div><div> </div><div>Public dissatisfaction with the judiciary is also mounting. The Judges’ behavior in the court is becoming arbitrary and often lacks the dignity attached to such high office. This, coupled with reports of corruption, and lack of financial integrity, is making the consumers of justice insecure. Sunlight is said to be the best disinfectant. Dark deeds are not just done in darkness, but in the secret recesses of power as well. </div><div> </div><div>With above 400 vacancies in various Constitutional Courts which seriously affect the justice delivery system across the country, it is a cause of concern to the Bench, the Bar and the public alike. One hopes this concern shall be immediately considered and remedied, keeping the process exposed to sunlight by the collegiums; and that men and women of merit and integrity alone will adorn the respective benches and the independence of judiciary shall continue to shine.</div><div> </div><div><strong>The author, A.S.Chandhiok, is former Additional Solicitor General of India</strong></div><div> </div>
