Tyranny of the Unelect Influencing Judiciary?

INTRODUCTION
Judicial Independence is basic to any Constitutional and Functional Democracy. Indian
Judiciary works Independently and is completely unelected, unlike our Political Executive.
An Independent Judiciary is important in creating a free society, it helps to stabilize society
by ensuring the rule of law and protecting and enforcing the Fundamental Rights of citizens. 1
There is complete unanimity on the fact that the Judiciary in a democracy must be
independent and competent, to ensure the necessary fearlessness to enforce the rule of law.
The major difference of opinion lies in the nature of separation between the Executive and
Judiciary to ensure judicial independence.2 The meaning of Judicial Independence has always
remained vague and imprecise, it originates from the doctrine of Separation of Powers by
Montesquieu implying that the Judiciary’s functioning is independent of Executive and
Legislature. While preserving the idea of Judicial Independence and it’s indispensability
towards a truly democratic society, a pertinent question remains, is the primacy of the
judiciary in the appointments the only method of ensuring Judicial Independence?

The idea that the primacy of Judiciary in the appointment process is the only way of securing
Independence has no Constitutional basis.

The Indian Constitution is the main source which establishes all constitutional organs and
from which they derive their powers, these powers are limited by various conditions and
restrictions enforced by the Constitution. Indian Constitution establishes a Parliamentary
form of government based on the separation of powers between the three organs, but there is
a lack of strict separation among the organs. While the Executive is clearly accountable to the
Legislature, the Judiciary exercises a substantial sense of independence in its functioning.

JUDICIAL HISTORY

In the First Judges case (1982), Judicial Independence was acknowledged as a part of the
basic structure of the Constitution .The Court ruled in favour of the Law Ministry in matters

1
Stephen G. Breyer, Liberty, Prosperity, and a Strong Judicial Institution, LAW & CONTEMP. PROBS., 1998.
2
Dr. B. R. Ambedkar’s to the debate on the draft provisions of the Constitution on the Supreme Court,
Constituent Assembly Debates, vol. VIII, Pg.258, 1949.
relating to the transfer of High Court Judges while reiterating that such transfer must be done
in the public interest.3

The majority in the case held that Executive had the power to appoint the High Court and
Supreme Court Judges and that there was no primacy of the Chief Justice of India in the
appointment of judges, because the word ‘Consultation’ of the Chief Justice in Article 124(2)
and Article 217(1) of the Constitution was held not to mean ‘Concurrence’. Even though, the
Judgement has since been overruled the basic essence of the argument is still valid.4

The Second Judges case (1994) dealt with vacancies in various High Courts and Supreme
Court. The Majority held that the primary opinion with regard to the appointment of Supreme
Court Judges and High Court Judges as well as their transfer will be with the Chief Justice of
India along with the opinion of Chief Justice of Concerned High Court, including matters
related to fixing the number of Judges required in a particular High Court. 5 Decisions of the
C.J.I. must be taken after discussion within a collegium including 2 senior most Judges of
Supreme Court.

Later, in the Third Judges case (1998), the Supreme Court upheld the decision of the Second
Judges case and the Collegium System, while expanding the composition of the Collegium. 6
It was also held that if there was a decision of Chief Justice that was opposed by 2 members
of the Collegium then the appointment could be cancelled. Also, if there was a choice of the
collegium was opposed by Chief Justice the appointment couldn’t take place.7

In 2015, the Collegium System was sought to be replaced by National Judicial Appointment
Commission (NJAC). This led to the fourth judge’s case where NJAC was declared
unconstitutional on the pretext that there is external interference which violates the
independence of the Judiciary.8

ANALYSIS

The Supreme Court has rightly held that the independence of Judiciary is one of the basic
features of our Constitution. The 99th Constitutional Amendment, which introduced NJAC,
was deemed unconstitutional by the court, as tampering of the Executive in Judicial

3
S. P. Gupta v. Union of India, AIR 1982 SC 149.
4
Ibid.
5
Supreme Court Advocates on Record Ass'n v. Union of India, AIR 1994 SC 268.
6
In re Presidential Reference, AIR 1999 SC 1.
7
Ibid.
8
Supreme Court Advocates on Record Association v. Union of India, (2015) 11 SCC 1.
appointments amounted to a violation of the Basic Structure of our constitution 9.The idea
that mere involvement of Executive vitiates the appointment process and attacks Judicial
Independence seems outrightly flawed, as there have been numerous judges, who were
Executive appointees but quite often rose to the occasion holding the government to account.
Two of the most revered judges of the Supreme Court, Justice K.S. Hegde, and Justice V.R.
Krishna Iyer, were career politicians prior to their appointment as Judges. While, there have
also been many instances of Judges who were appointed through the collegium procedure,
explicitly towing to the government line for some consideration or the other. If elected
representatives are treated as Pariah’s in appointment then it is dangerous for the democratic
structure of country.10

The Supreme Court exercising its power of Judicial Review to not only strike down the
NJAC but also revive the Collegium system is rightly the tyranny of the unelected ,as it
casts aspersions on the elected members of Parliament, who enjoy a mandate bestowed upon
them by the citizens of this country.

The Collegium procedure of appointment of judges has lost its credibility in public eyes, with
numerous instances of highly dubious appointments, raising concerns in the mind of ordinary
citizens, about those entrusted to guard his rights. This was evident in the case of Justice P.D.
Dinakaran, whose name was cleared by the Supreme Court Collegium, for elevation to the
Supreme Court, post which allegations of financial impropriety surfaced against him. This led
to the initiation of Impeachment proceedings against him and ultimately his resignation.

Another problem which adversely impacts the Institutional Majesty of our courts is the
prevailing trend of Nepotism in Judicial appointments, quite often children of Judges, or
those advocates who have a lobby for themselves in the Bench are given preference in
appointment as judges. Such appointments are wholly opaque and subjective and quite often
lead to non-deserving candidates becoming Judges and being entrusted with the powers of
Life and Death11 . This is seen as a product of a culture of patronage and sycophancy
perpetuated by the Collegium system.

In Most democracies, their Supreme Courts have been given the responsibility of interpreting
the Constitution, quite often which goes beyond the literal textual meaning of the written
9
Ibid
10
Available at https://www.telegraphindia.com/states/bihar/tyranny-of-unelected-jaitley/cid/1327430
11
Available at https://thewire.in/law/nepotism-and-casteism-in-collegium-system-alleges-allahabad-hc-judge-in-
letter-to modi#:~:text='Nepotism'%20in%20Collegium%20System%2C%20Alleges%20Allahabad%20HC
%20Judge%20in,basis%20of%20lobbying%20and%20favouritism.
constitutional provisions. In India, Article 124 (2) says “Every Judge of the Supreme Court
shall be appointed by the President …..after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem necessary for
the purpose …..Provided that in the case of appointment of a Judge other than the chief
Justice, the Chief Justice of India shall always be consulted”, the Supreme Court of India
interpreted the word ‘Consultation’ to mean ‘Concurrence’ of the C.J.I., leading to primacy
of C.J.I., in Judicial Appointments, and quite possibly the first instance of a Constitutional
Court Interpreting a provisio to literally mean the opposite of its original textual meaning.

There is a need of an open mechanism for the appointment of Judges to ensure the
Independence of judiciary as well as individual independence of Judges. Judges exercise
constitutional power, so there has to be a degree of accountability. As the procedure of
impeachment is quite cumbersome, many times misconduct falling short of impeachment is
brushed under the carpet. This led to the dissenting judge in the NJAC Verdict remark that
NJAC would “act as a check on unwholesome trade-offs within the collegium and incestuous
accommodations between Judicial and Executive branches.”12

CONCLUSION

Independence of Judiciary is fundamental to any Democratic society. But as it is said Power

corrupts and Absolute power corrupts absolutely. India is the only country, where Judges
appoint Judges, and any desire for change in appointments is termed as an attack on Judicial
Independence. The Judgements of our courts are significantly enhanced by judgements of
foreign courts like France, U.K. etc, the judges in all these jurisdictions are not appointed
exclusively by Judges, for instance, Judges in the U.K. are appointed by a commission which
also has members from non-legal backgrounds, while in France, Judges are career civil
servants, these models of Judicial Appointments have worked to the satisfaction of their
citizens. The Indian Judiciary needs to address the growing public concerns regarding not
only judicial appointments but also the functioning of the courts at large, as people are the
true masters of any democracy. The Courts must always remember the famous lines by
Justice J.S. Verma ‘Be you ever so high, you are not above the law’.

12
Supra Note 8