Supreme Court: a Critical Perspective

Source:- thestatesman.com

The Supreme Court is required to maintain a level of accountability to the public, independence from the other wings of the republic and credibility.

Unlike the other two wings of the republic, the judges of the Supreme Court are unelected and therefore cannot be said to represent the will of the people.

In this article, we aim to highlight areas where the credibility of the Supreme Court is not what it ought to be. Since 1993, under the present Court’s collegium system, the Chief Justice and his four senior-most colleagues appoint Supreme Court and High Court judges to fill all vacancies. India’s Supreme Court is the only one in the world that appoints its own members.

The National Judicial Appointments Commission (NJAC) was enacted by Parliament in 2014. It was declared unconstitutional by a 4:1 majority of the Supreme Court in 2015. Justice Chelameshwar, the dissenting judge in the NJAC judgement said, “There is no accountability in this regard. The records are absolutely beyond the reach of any person.Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country”.

The problem isn’t merely that the collegium system is flawed. The problem is that the Supreme Court, having recognised that there is a problem, is doing very little to rectify the issue. On top of that, it is being a bully – unwilling to cede ground after having lost the game.

Neither the Constitution nor the Constituent Assembly Debates lend support to the sanctity of the current collegium system of judicial appointments.

The Constitution merely states that the President ‘shall consult’ the Chief Justice. Making the Chief Justice’s wishes binding, with the President or executive having no say in judicial appointments, seems greatly beyond the constitutional requirement.

The Vekatachaliah Commission, headed by Justice Venkatachaliah, the 25th Chief Justice of India, recommended in 2002 a 5-member NJAC. Further, both the government and the opposition planned to implement the NJAC. The only thing changed in the Modi government’s Bill was that instead of a five-member Commission, there was a six-member commission.

The ex-CJI, the ruling party and the opposition said having a NJAC is a must. However, the bench headed by Justice Khehar called it unconstitutional. Further, the interference of the Executive in the past was with respect to the position of the Chief Justice and not the appointment of judges to the Supreme Court. It is currently well settled that the senior-most judge of the Supreme Court is to become the Chief Justice. The NJAC didn’t dispute that. It only determined who is to be appointed to the Supreme Court and how.

Indeed, the first judges’ case in 1982 vested the primacy for judicial appointments with the Executive. Only in 1993 did the Supreme Court organise the collegium, a decade after all executive interference stopped. Along with judicial appointments, another concern looms over the vacancies in the constitutional courts. India’s 24 high courts have the capacity for 1091 judges.

However, about fifty per cent of these positions are now vacant.

Further, the retirement age of the Supreme Court judges should be increased to at least 70, if not 75. Once a judge of the High Court or Supreme Court retires, the job that usually awaits him or her is heading a commission. There ought to be a mechanism in place that caters to the job requirements of judges after they retire. Moreover, it is astounding how lawyers of the Supreme Court pay little attention to precedent.

There have been instances where the Supreme Court has just forgotten that a certain case existed dealing with a very similar issue. The lack of research by the counsel arguing the matter is to blame here. In the recent case of Ardee International, the Delhi High Court somehow forgot to take into consideration very similar cases decided by the Bombay, Calcutta and Madras High Courts.

Further, the Supreme Court should not delve into policy decisions and determine what’s best for India. The Court concluded its reasoning in G Sundarrajan v. Union of India (2013) by stating that all expert teams were unanimous in their opinion of the safety and security of the Kudankulum Nuclear Power Plant, both to life and property of people and environment. Hence, the Court had to respect the country’s national nuclear policy as reflected in the Atomic Energy Act, and the same had to be given effect in the interests of the people’s welfare and India’s economic growth.

This is one of the few cases where inspite of a huge uproar against the nuclear power plant, the Supreme Court allowed it. We believe that the court made a policy decision to conclude that nuclear energy for India is more important than a few protestors. We believe that it is not the role of the Supreme Court to make policy decisions.

Further, in cases of In re Construction of Park at NOIDA and Lafarge mining, the Supreme Court refused to allow the felling of trees in the latter, whereas it permitted it in the former. It almost goes without saying that the Supreme Court erred when it recently, on its own motion, required the executive to come up with a programme to interlink India’s rivers. River management belongs to the Centre and states.

Trans-boundary rivers, involving relations with neighboring countries, belong exclusively to the Centre. The Supreme Court of India undoubtedly exceeds its constitutional boundaries when it tries to involve itself with clearly executive functions. The judiciary needs to be a sought-after profession.

There are currently 17 National Law Universities and a handful of private law colleges that are churning out about 2,000 qualified lawyers every year. Most of them go for corporate jobs in India or abroad. There is a need to prepare talented lawyers for judgeships. A way to do that is to increase judges’ salaries.

A senior associate at a major Indian law firm often earns more than the Chief Justice of India. We believe that the Court cannot go into policy decision-making to pass orders whenever it deems appropriate. We believe that the Supreme Court ought to rely on precedent and not pass orders behind the cloak of the Constitution or with pro-corporate motives. There ought to be accountability and consistency in the orders passed by the Court.

It is an adjudicatory authority that ought not decide what is best for the country; that is the role of India’s elected representatives.