The Paradoxical Indian Judiciary
A few days ago the BCCI was put in its place by the Supreme Court of India. Though the organization has a definite working structure without which the strong Indian cricket team of today could not have been built there were specific flaws which brought about its downfall. It refused to implement the recommendations of the Lodha Committee which was an attempt to bring about accountability and transparency in the functioning of the board. Issues like opaque functioning, allegations of unethical practices, instances of conflict of interest brought the organization down to its knees. It would be difficult to predict the future of the organization but it was the BCCI’s unwillingness to change according to the demands of the civil society that resulted in the judiciary intervening in the organization.
But it is disturbing not to think about the level of hypocrisy involved in the case. Last year, the Parliament legislated for the formation of a National Judicial Appointments Council (NJAC) to change the methodology of appointments to the echelons of judiciary. It was squashed by the judiciary citing ‘the proposed structure violates the independent functioning of the judiciary which is a primacy of the Constitution’. To appreciate the legislation a contrast between the two structures is necessary.
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Currently, judges to the Supreme and the High courts are selected by a ‘collegium’. The collegium comprises of the senior most judges of the either the Supreme Court or the High Court depending upon where the selection is considered. The criteria for selection, methodology of evaluation and the minutes of the meetings are shut out from the public domain. Moreover, the decisions of the collegium cannot be questioned by any other authority!
The proposed NJAC, on the other hand, consisted of members of the executive, judiciary, and the public domain. The eminent members of the public were again selected from a group consisting of the executive and the judiciary. Involvement of the executive does elicit doubts about political interference in judicial appointments. But that cannot be the sole basis of dismantling an entire structure. The judiciary could have altered the proposed NJAC model with a veto for the judicial members thus preventing appointments from political malaise. But it chose to squash the proposal altogether. Though the judiciary has expressed willingness to change by requesting a memorandum of procedure to be followed for appointments there has not been much progress except for the tussle between the executive and the judiciary.
Could there be an organization which is touted as the Guardian of the Indian Constitution to have an appointment procedure which is by and of itself? The shortcoming of the judiciary does not stop with appointments alone. Three crore pending cases, conflict with the executive delaying appointments, ignorance of administrative constraints of the executive, judicial overreach etc… are few among many problems which plague the system.
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The Honourable SC has protected the Indian citizen and has delivered several landmark judgments for preserving democracy. The judgment prohibiting seeking votes in the name of divisive forces like caste, religion etc... is only the recent of several laudable observations. But the judiciary has to understand that the institution cannot survive if it remains opaque and unalterable. It is certainly the time for introspection and rediscovery to repose the faith of the judiciary as the rightful guardian of the Constitution.
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