New Delhi, Sept. 13: India’s top judge today said the judiciary’s independence was “non-negotiable” and “no effort will succeed in taking (it) away”.
Chief Justice of India R.M. Lodha went on to praise Britain’s five-year-old National Judicial Appointments Commission, headed by a layperson, which he said was deemed to have achieved transparency in judges’ appointments.
Justice Lodha did not mention the proposed commission of the same name that India’s government wants to set up for the same purpose, replacing the judges-only collegium (panel) that now appoints Supreme Court and high court judges.
The two bills Parliament has passed to pave the way for the commission had prompted members of the legal fraternity to move four petitions arguing the bills undermined judicial independence and were, therefore, unconstitutional.
Lawyers who heard Justice Lodha today said his praise for the British panel could be interpreted to mean he was not against a similar panel in India if transparency could be ensured and judicial independence guaranteed.
“To me, what is dear is the independence of the judiciary. It is one thing which is non-negotiable, I have been repeatedly (saying),” Justice Lodha said while inaugurating the Rule of Law Convention, 2014, organised by the Bar Association of India, one of the country’s largest private associations of senior lawyers.
“I can tell you, having been a judge of the high court, chief justice of the high court (of Bombay) and now the Chief Justice of India… that the judiciary has (an) inherent strength and no effort will succeed in taking away the independence of the judiciary.”
Later in the day, law minister Ravi Shankar Prasad said the independence of the judiciary was “sacred and sacrosanct” for the government.
On August 11, Justice Lodha had slammed the “canard” being spread against the current collegium system, speaking just hours before the Centre moved the two bills.
“There is a campaign and canard going on in the media that the collegium system has failed. You are defaming the judiciary and showing disrespect,” he had said. “Don’t shake the confidence of the people in the judiciary by saying the collegium system has failed.”
Today, he linked judicial independence to the rule of law and the people’s confidence in the courts.
“By and large, the people understand that the judiciary is something of an institution whose independence cannot be touched and I’m sure, more than confident, that the independence of the judiciary will be maintained by everyone, and everyone to whom the judiciary is dear, at any cost,” he said.
“Once the independence of the judiciary is maintained, I am sure you will have a strong rule of law because it is the independence of judiciary that leads to confidence in the minds of people that there is a judiciary that will come to their aid and rescue if there is wrong (done) to them by the executive or anybody.”
Justice Lodha said the 15-member British commission’s most significant aspect was that it had to be necessarily headed by a layperson who had no legal expertise, although most of the other members were judicial experts.
India’s proposed commission will be headed by the Chief Justice and have the two other senior-most apex court judges, the Union law minister and two eminent citizens as members.
Justice Lodha said the British commission’s members had told him that initially, they “found it difficult to get applications from leading lawyers as they were not mentally prepared even to think” that they had to apply for judges’ posts. “But things change; now the mindset has changed, they do make applications…. Still, many leading advocates do not apply.”
Justice Lodha said he had asked the British commission’s members “a pointed question” — whether the change in the system had changed the quality of appointments. “The answer was in the negative but they emphasised that the major goal achieved was that of transparency. There is no change in quality but it has brought about transparency,” he said.
The Indian commission can come into being only after the bills obtain presidential assent — after at least half the states ratify them. On August 25, the Supreme Court dismissed the four petitions against the bills but said the petitioners were free to approach the court again after the bills received the President’s nod.
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