The attack on the last bastion — the judiciary

Source– The post is based on the article “The attack on the last bastion — the judiciary” published in The Hindu on 14th December 2022.

Syllabus: GS2- Judiciary

Relevance– Challenges faced by higher judiciary

News– The article explains the issue of judicial appointments. It also explains the lack of  executive accountability in India these days.

Recently, the Vice-President Law Minister, Kiren Rijiju commented on the working of higher judiciary.

What is the position of executive today?

Today, there exists a lack of executive accountability. Since 2014, the Government has undertaken a well-crafted and deliberate takedown of various institutions and mechanisms that could hold the executive accountable.

There are attempts to undermine the independence of the judiciary.

Parallels can be drawn with ‘elected autocracies’, where elected governments use the institutions to kill democracy and destroy civil liberties. Institutions like National Human Rights Commission, ECI and Information Commission have been made dormant.

Investigation agencies are misused against activists, journalists, students, political opponents, or anyone who protests against the government. Academia, the press, and civil society have also been systematically suppressed. Universities are under attack. Media operates mostly as a propaganda machine.

What has been the practice of judicial appointment in our country?

In the early years of modern India, decisions on judicial appointments were usually made on the advice of the CJI. Even if concurrence was not contemplated, an independent judiciary was non-negotiable.

Both the Indira Gandhi and Rajiv Gandhi governments attempted to manipulate the process. The collegium was created as a historical response to these challenges. It succeeded in preventing the executive from hijacking judicial appointments.

The NJAC law could have fixed this problem. But it had many flaws that were structured to undermine judicial independence. The SC went for striking down the law.

What are the challenges faced by the higher judiciary?

The government is not willing to cooperate, let alone consult, with the Supreme Court. Names proposed by the collegium are left pending for years.

The judiciary faces the problem of pendency of cases and vacancies of judges. Pendency is caused majorly by poor judicial infrastructure.

Since the Supreme Court’s decision in 2015 on the NJAC Act, the judiciary has remained passive. However, with the last three CJIs, the Court is being more assertive and speaking in a non-aligned and confident voice.

What is the way forward for improving the system of judicial appointment?

The appointments system must be fixed. There is a need for a clear, rule-based system. Even the existing collegium system can be improved.

It can be done through well-defined criteria for appointments, transparency and accountability in selection, better methods of assessing candidates for elevation, and improved ways of ensuring diversity and representation.

In the long term, the government should strive for well-structured and balanced legislation on a judicial commission that brings in transparency without compromising judicial independence.