Uneasy relations


October 22, 2015

A file photo of the Supreme Court of India, New Delhi

In a recent judgment, the Supreme Court trashed parliament’s attempt to allow the Executive a say in the appointment of judges.

Clearly, the trust deficit between the two critical institutions in a democracy appears to be widening by the day as cases pile up.

Every few years, this tussle keeps popping up, as if to test the Constitution that its framers so assiduously worked upon with such remarkable foresight. The framers conceptualised the checks and balances for running the democracy in such a well thought-out manner that there should have been little for anyone to complain about. Yet, the Executive and the Judiciary have, so to speak, never had a quiet moment whenever the powers of either of these institutions are even vaguely touched at the fringes.

Clearly, the case decided upon last week by the country’s top court, the Supreme Court, was something future generations will continue to refer to as historic for several reasons. For one, it shows how the five-judge Constitutional bench’s verdict on the Executive’s powers to appoint higher Judiciary has again extended the friction between the two pillars of democracy instead of resolving it. For the layman, the issue simply boils down to whether the government should have a larger say in the appointment of judges to the Supreme Court or the whether the judiciary should take that decision.

For almost 22 years, the country has followed a system of a panel of judges deciding who can be elevated to the highest court of the land. In a span of two judgements, the apex court decided to keep the Executive away from deciding who can or will sit in judgement. The Collegium system, as it came to be called, became so much of a power irritant that both the Congress-led and the BJP-led governments detested it, quite equally. And, the only issue on which they seemed to agree even after the bitter electoral battle of 2014 was on the Executive having a say in the appointment of judges. This is what brought the National Judicial Appointments Commission, or the NJAC, to become the Constitutional (99th Amendment) Act, 2014.

The Constitutional bench certainly did not like this one bit. There was no way it was going to accept the Executive having a say in its domain with three of the non-judicial members of that commission including the law minister and two ‘independent’ members. The presence of independent members was, itself, too much. The added red rag was that these two also had a veto power if they did not like the proposal from the judicial members, which included the chief justice of the apex court and his senior colleagues from the Judiciary.

It is agreed by even judges and the legal fraternity that the Collegium system is not perfect. Indeed, it is well accepted that it is a failed system. Reason one: The secrecy involved in appointments is very high. It is only after the appointment of a judge does anyone get to know who has been chosen. By then, as one former Supreme Court judge mentioned in a private conversation with this writer, it would be difficult for anyone to attempt contempt of court by questioning that appointment. In fact, one of the dissenting judges in this case, Justice J Chelameshwar, quotes a specific case of the appointment of a judge whom the judiciary found difficult to remove despite charges of corruption.

In the words of one of the four judges who voted out the NJAC, Justice Kurian Joseph: “The Collegium system lacks transparency, accountability and objectivity. Trust deficit has affected the credibility of the Collegium system.’’ In fact, legal eagles will quote quite a few instances in private conversations in which the secrecy in appointment of judges has led to a ‘you-back-my-candidate and I-shall-back-your-candidate’ approach. This was not very different from what the Executive used to do before the 1993 judicial verdicts brought in the Collegium system. Indeed, one of the apprehensions expressed in the case of the NJAC is also that it could lead to a cosy club which the Executive saw as an entry point to control judges.

This vulnerability in a section, however miniscule, of the judiciary to indulge in corruption or indulge in favouritism, has also been boosted by the ineffectiveness of the impeachment system. The most glaring example of this was the experience about two decades ago. It was clear that the political class broke the norm with impunity. In this particular case, three senior judges of the Supreme Court had found their brother judge guilty of the charges but parliament decided against impeachment for various political considerations.

But, despite the strong views that the judges expressed while trashing the NJAC as ‘unconstitutional’, the verdict did not provide an option that could better the existing Collegium system. It has, however, kept the option open to listen to the government as well as the petitioners to improve upon the existing system. What comes out of this is a matter that will decide whether this wound would remain festering. But to the layman it appears as if the Executive and the Judiciary are indulging in institutional competition. The former on the grounds that it was people’s power that was insulted. And, the latter assertively ruling that its domain shall not be interfered with and it shall remain a secret chamber.

It is clear that neither of the competitive moves show transparency that would evoke confidence among the people. Sadly, the only aspect that does not appear opaque to the litigant public is the message coming out of this battle for supremacy. That the long pendency of cases, some running into not one or two decades but even more, in the courts of law would not change for a long time to come.

The noodle story
Maggie noodles have again hit page one of newspapers albeit as advertisements saying it is safe to eat them. The favourite food of the young and the old had been simply tossed out of the pan and the shelves after it was found to have monosodium glutamate (MSG) and lead beyond permissible limits. That was what a lab report from the northern state of Uttar Pradesh said. Soon enough, the ban turned viral with the Food Safety and Standards Authority of India (FSSAI) also backing that report in June last. The peculiar part of the noodle story is that the same product exported to various countries from India did not contain anything that violated global norms.

In any case, after the Bombay High Court’s order to pass the tests at three designated labs, the product is set to hit the markets sooner than expected. At least, two states, Gujarat and Karnataka, have already given it the green signal to market it. At least, one of these states felt that there was no clarity on the permissible limits for MSG and lead. It was due to this confusion that it fell in line with the direction of the FSSAI to ban the product though tests in various labs did not show any violation of the limits. Of course, those eager to consume their favourite noodles would have to wait for the states to get the product tested again at these three designated labs. So, the tag line could well be changed from ‘two minutes’ to ‘just an extra minute’ to savour the favourite noodles.

Tailpiece
A WhatsApp group of parents of children studying in the same school had a string of congratulatory messages, the other day. The reason was that one of them happily announced that they were the proud owners of a BMW 750.

The messages included the best of wishes for a safe drive etc until, of course, one of them got the original message in the right spirit. She put out the advertisement of a company that made wafers. Never mind what the product is all about. It’s the branding that makes the difference even if it is a combo of various Indian spices. The name of the Indian company is
Balaji Masala Wafers, 750g. In short, it is ‘BMW 750’.