How to make the judiciary more independent?

The Indian Supreme Court's recent verdict scrapping a constitutional amendment that had proposed for the introduction of a National Judicial Appointments Commission provides fresh food for thought regarding the appointment of judges in our higher judiciary.  

The Indian government had amended the Constitution last year by ensuring a significant role for the executive in appointing judges in the higher courts. The constitutional amendment had proposed that all the appointment of judges in the High Courts and Supreme Court be done by the six-member commission, headed by the chief justice of India. The members of the commission were two senior most SC judges, the union law minister and two "eminent" persons. The two eminent persons would be selected by a panel including the prime minister, the chief justice of India and the leader of the largest opposition party in the Lok Sabha.

The court, however, reversed the government's move, terming it as interference in the independence of the judiciary. In a landmark verdict, the SC on Friday [October 16] scrapped the constitutional amendment terming it unconstitutional for "the significant role of the executive." In the apex court's view, the appointment of judges, coupled with primacy of judiciary and the Chief Justice of India, is part of the basic structure of the Constitution and the parliament has no power to tinker with this structural distribution.

The apex court said: "…primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The chief justice of India has the last word in the matter." After 35 years, a constitutional amendment was scrapped by the SC. With the amendment scrapped, the previous system was revived. From now on, judges' appointments shall continue to be made by the Collegium system in which the chief justice of India will have "the last word".

The 20-year-old collegium system prescribes appointment of judges by a panel comprising five senior most judges of the SC and High Courts, with the power to confirm appointments despite resistance, if any, from the government.

Let us now look at our constitutional provisions regarding the appointments of judges in the Supreme Court. Our government still retains sweeping powers to appoint judges in the higher judiciary. The constitutional provisions empower the president to make the appointments and as many in numbers. And in doing so, he must act on the advice of the prime minister. Therefore, the appointments are made in line with the government's wishes. 

The chief justice is consulted by the president in making the appointments. But this consultation only takes place when the president makes permanent appointments to the High Court and to the Appellate Division. 

Yet, this provision did not exist in the Constitution for quite a long time. The provision for consultation was restored in the Constitution only in 2011. The original Constitution of 1972 had the provision, but was abolished in the constitutional fourth amendment in 1975. 

The chief justice is not, however, consulted by the president when the latter appoints additional judges to the High Court Division for a two year term. After the two year term, additional judges are either confirmed as permanent or may be appointed for another term as additional judges. 

The original Constitution of 1972 had the provision for consultation with the chief justice with regard to the appointment of additional judges. But this provision was abolished in the fourth amendment in 1975 and has not yet been restored. 

There is another disturbing side. The Constitution asks for the enactment of a law specifying additional qualifications of individuals willing to be a judge of the Supreme Court. In the absence of law, a person, if he is a citizen of Bangladesh, and has been an advocate of the SC for at least 10 years or has been holding judicial office for 10 years, is eligible for appointment as a judge to the apex court. S/he needs no other qualification. There is no other mechanism to scrutinise the efficiency of individuals willing to be judges of the apex court. This situation has kept benefiting the government, not the higher judiciary.

Given the present situation, in  light of the Indian SC verdict; does our government interfere in the independence of our judiciary by retaining sweeping control over the appointments? And who has the last word in making the appointments - the prime minister or the chief justice? 

In India, Justice J S Khehar, who led the SC bench to declare the constitutional amendment void, highlighted immense significance of proper appointment of judges.  

"The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts," said Justice Khehar. 

His views were supported by Justice Lokur, who rejected the Attorney General's submission to "give National Judicial Appointments Commission a try". If during experimentation, he said, the independence of the judiciary is lost; it is gone forever and cannot be regained by simply concluding that the loss of independence is a failed experiment. 

The independence of the judiciary is not physical but metaphysical, said Justice Lokur, adding that the independence of the judiciary is not like plasticine that it can be moulded any which way.  

It has been a long settled principle across the globe that without upholding the independence of the judiciary, no country will be able to strengthen democracy. It is because independent courts are the hallmark of a strong democratic society. Our leaders should think and discuss it again with an open mind.

The writer is a senior journalist of The Daily Star.