‘Who are the judges accountable to?’

The Communist Party of India (Marxist) had early on articulated the demand for a National Judicial Commission encompassing all aspects of the judiciary, including appointments. It sees this as an opportunity to address all issues while protecting the sovereignty of the people, the supremacy of Parliament and the independence of the judiciary. Excerpts from an interview Sitaram Yechury, the CPI(M) general secretary, gave Frontline :

Will the striking down of the National Judicial Appointments Commission (NJAC) by the five-judge bench diminish the other structures of the Constitution as is being suggested by some sections of the National Democratic Alliance (NDA) government? Is it tyranny of the unelected over the elected?

The present government overruled our objections in August 2014 when it introduced the NJAC Bill. We argued that the commission should include not only appointments but all aspects of the judiciary. We had maintained that what was required was a comprehensive National Judicial Commission that would deal with everything—appointments, allegations of corruption, transfers, acts of omission and commission by judges and issues relating to the delivery of justice. This is what we had argued for and we had raised the matter during the United Progressive Alliance’s [UPA] term, too. At that time, the Bharatiya Janata Party [BJP], as the principal opposition party, had supported us. When it came to power, it was eager to bring up only the issue of appointments, to which we had raised objections at the introductory stage itself.

In the winter session, when the government brought in the Constitution Amendment Bill and the NJAC Bill together, we pointed out that it would be ultra vires of the Constitution as the Constitution did not have a provision for judicial appointments of this nature and so unless the Constitution was amended, the NJAC could not be considered by Parliament. But the government was reluctant—the Law Minister and the Finance Minister used all their legal acumen to justify what they were doing, upon which the Chair asked for the opinion of former Attorney General K. Parasaran, who is a Rajya Sabha member now, and he agreed with me. The two Bills were delinked. The Constitution Amendment Bill was brought in. I then argued that the constitutional amendment could come into force only if it was endorsed by more than one half of the State Assemblies by a two-thirds majority. The government objected, saying that not all the Bills required this procedure and this particular Bill did not. Again the matter was raised with the then Attorney General and he again agreed with me.

The NJAC was brought in with a proviso that it would come into force after the constitutional amendment.

This Bill went through all these hiccups and at that point we said that the government appeared to be in undue haste to somehow push through the appointment aspect, which smacked of a political agenda. That danger was always there. Since the judicial appointments were also a part of the overall NJAC that we had envisaged, we supported the Bill on the assurance by the government that it would soon come up with a comprehensive National Judicial Commission. That never happened. That only reconfirms our apprehensions about this government’s motives in seeking to control only this aspect of judicial appointment.

What are the views of the CPI(M) on the crux of the judgment—that the appointment of the NJAC through the Constitution 99th Amendment Bill strikes at the independence of the judiciary?

A careful reading of one of the dissenting opinions endorses what we have been saying. Any judicial reform should not be confined to this aspect. The process must include not only judicial appointments but other aspects such as transfers, allegations of corruption and whether the case merits an impeachment motion, and so on. This came up after I moved the impeachment motion against Justice Soumitra Sen of the Kolkata High Court and it was carried out by the Rajya Sabha—the only instance in independent India where an impeachment motion was actually carried out. Now there is an elaborate procedure by which an impeachment motion is submitted to the Chair, who then applies his or her mind, and if some merit is found, sends it to a committee to examine it. This is an elaborate process and takes a long time—whether the judicial commission can also be asked to examine it needs to be seen. These are the issues that require parliamentary debate and scrutiny. The CPI(M) sees this as the process of fine-tuning our democracy, which always becomes inevitable after years of experience. It is time we had an NJAC of this nature.

The majority judgment also opined in favour of improving the collegium system. Do you see that as a solution?

We had supported this Bill with a word of caution that we should not single out this aspect alone. According to us, that is the constitutional scheme of things. The supremacy and sovereignty rests with the people. The people exercise their sovereignty through the elected representatives. The executive is answerable to the legislature, which in turn is answerable to the people. This is the essence of our Constitution, which cannot be negotiated. The supremacy of Parliament cannot be questioned. But there are certain aspects the majority judgment has drawn attention to. The sovereignty of the will of the people is equivalent to the majority in the Houses of Parliament at any point of time. When such a majority is backed by the support of a minority of voters—the 31 per cent of people who voted for the NDA, which is the expression of the people in our first-past-the post system—can that be passed off as the sovereignty of the people as a whole? The centrality of the Constitution is the sovereign will of the people, and that cannot be questioned. These are finer points of law. These are matters that require greater deliberation. In sum, now that the majority verdict has come, this is an opportunity for Parliament to revisit the entire issue. The onus is on the government to come up with comprehensive legislation where the independence of the judiciary remains sacrosanct and the centrality of the Constitution in terms of the sovereignty of the people remains sacrosanct. We see no contradiction between the two. Therefore, we have asked the government to use this opportunity to come out with comprehensive legislation.

The majority judgment has interpreted that the Constitution 99th Amendment infringes on the independence of the judiciary.

The judiciary can be seen as infringing on the supremacy of Parliament in matters of legislation. It says that we are interfering in the rights of the judiciary. We are saying neither of the two. The Constitution is clear—there is a separation of authority between the three. Over the years, according to our experience, these distinctions may have been blurred. The independence of the legislature and the executive, more than anything else, has been negated. For instance, if Parliament does not function, the executive’s accountability to Parliament cannot function. Therefore, Parliament’s accountability to people gets distorted. We have 60 years of experience. There is judicial activism, too. What is needed is judicial review. The judiciary cannot take over the role of the executive. There are judgments that decide the fee of dental colleges, the height of speed breakers, or maintenance of sanitation. Why should this happen? These are executive decisions, but the executive has abdicated its responsibility. Let us use this opportunity to fine-tune the Constitution while maintaining the independence and separation of all three organs. Independence of the judiciary is sacrosanct, the sovereign will of the people is sacrosanct, and the executive is accountable.

What are your views on the strengthening of the collegium as suggested by the five-judge bench?

As far as the collegium is concerned, it was not there all the while. It has a recent history. No set of people can be the sole authority for appointing people belonging to the same set. The legislature is constituted by the people; the executive is appointed by the legislature; but who will constitute the judiciary? Who will judge the judges? Who are the judges accountable to? That is why we proposed the NJAC. But the time has come to give a good thought. It is up to the government of the day—if they want to take a larger input, let them. We say that instead of bringing back the NJAC Bill, the government should use this as an opportunity to reconsider the entire National Judicial Commission. In principle, the CPI(M) is against any set of people deciding about themselves or the new entrants into that set—the same principle that tells us MPs cannot sit on decisions about their salaries. We have always asked for an independent authority. It is not democratic per se .