The judicious choice

Relevance: This article emphasises ensuring the independence of the judiciary.

Synopsis:

Selection of deserving judges is essential to ensure independence of the judiciary. The Collegium must do its best in this task in order to uphold the constitutional spirit and democratic ethos.

Background:

• India is the largest democracy in the world thanks to the sacrifices of millions of freedom fighters.
• Amongst the constitutional institutions designed to protect democracy, the judiciary occupies a significant place. However, there is little doubt that the judiciary is being challenged, from within and outside. 
• The judiciary must shield itself from further erosion of its independence and competence by carefully following the law, as declared by the Supreme Court (SC) itself.

Judicial Pronouncements:

• Second Judges Case (1993): The SC held that no appointment of SC or HC judge can be made unless it conforms with the opinion of the Chief Justice of India (CJI).
  • A Collegium system was devised for recommending the appointments; consisting of the CJI and the four senior-most judges of the SC and high courts.
  • This ensured that the opinion of the CJI is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
  • Further, the decision would preserve the independence of the judiciary which is part of the basic structure of the Constitution. 
• National Judicial Appointment Commision (NJAC) Case (2016):  The SC struck down NJAC. It strongly disapproved of any role for the political executive in the final selection and appointment of judges.
  • As per SC, NJAC may generate reciprocity and feelings of payback to the political executive, which would have been disastrous to the independence of the judiciary.

Dismal performance of Judiciary:

• Candidates lacking in essential attributes have been appointed routinely, which has raised serious questions over the integrity of Collegium members.
• Sadly, instead of selecting the best from amongst those available, compromises appear to have been repeatedly made in the past.
• As per Justice HR Khanna, one of the new trends in judiciary is growing tilt in favor of upholding the orders of the Government.
• The scenario is pointing towards the compromise of judicial independence, thereby undermining democracy and basic structure of the constitution.  

Way Ahead:

• Judiciary must realize that there is a heavy burden on its shoulders. It should function in an independent and objective manner.
• The judiciary should work to the best of its abilities and in consonance with the constitutional oath. This will help in upholding the rule of law and ensure prudent administration of justice.