Lecture on “Judicial Independence and Appointment of Judges” by Prof. Faizan Mustafa (September 07, 2014)

Prof. Faizan Mustafa, Vice-Chancellor NALSAR University of Law, Hyderabad

Prof. Faizan Mustafa, Vice-Chancellor NALSAR University of Law, Hyderabad, delivered a lecture on “Judicial Independence and Appointment of Judges” on the occasion of 28th Annual Meeting of the General Assembly of the Institute of Objective Studies held on September 7, 2014. Delivering the lecture, Prof. Mustafa argued that the good work being done by the present government at the Centre in any field must be appreciated. He especially referred to the initiatives in manufacturing sector.

He, however, opposed the enactment of the new labour law by the Rajasthan government and termed it as anti-labour and pro-capitalist. He pleaded for a strong leftist lobby to oppose the anti-people measure of the Rajasthan government.

Commenting on the assumption of office by the former Chief Justice of India, Justice P. Sathasivam, as Governor of Kerala, Prof. Mustafa said that it would have an adverse effect on the independence of judiciary. While admitting that the existing system of collegium to select judges of the Supreme Court and high courts was not working well, he cited the case of the senior advocate of the Supreme Court, Mr. Gopal Subramaniam, who failed to be recommended for appointment as a Supreme Court judge.

Referring to the former judge of the Supreme Court and present Chairman of the Press Council of India (PCI), Mr. Justice Markanday Katju’s argument that merit not seniority should be the sole criterion for appointment as Chief Justice of India (CJI), he noted that Justice Katju wanted to give too much power to the new government, including power to appoint a person directly as CJI.

He remarked that conceding unlimited power to the government posed a huge challenge to constitutionalism and limited government. Justice Katju’s suggestion for government appointing new CJI in a week’s time or so only on merit, ignoring seniority, was amazing as the new bill seeking to set up a judicial appointments commission had not yet become law and even the new law did not give this right to the government. In view of Justice Katju’s earlier secular views, his conviction and faith in the impartiality, objectivity and fairness of the new government was intriguing, he pointed out.

Expressing his views on the application of federalism and the principle of separation of powers in India, Prof. Mustafa quoted that India is a federal state with subsidiary unitary features. He said that in a federal form of government states were not subordinated to the Centre, but had mutual relationship with the latter.

Regarding separation of powers between three branches of government he opined that no such separation of powers existed in India. He explained that bills were cleared by the cabinet and then sent to the legislature for enactment. Since the passage of the bill was ensured by the government of the party that commanded majority in the House, there was no separation of powers in true sense of the term.

Though the Supreme Court had ruled that the separation of powers was the basic feature of the Constitution, there was inconsistency in the rulings of the apex court. This was due to the constitution of division benches which delivered different judgments at different times in the cases of same nature. This, he said, was due to the non-existence of the system of the constitution of full court.

Tracing the history of federalism, Prof. Mustafa observed that if Congress had accepted the proposals of the Cabinet Mission Plan, creation of Pakistan would have been avoided and India would have adopted a federal Constitution with a true power-sharing formula between the Centre and states.

He believed that the Constitution provided for a parliamentary democracy and in such a system there was majoritarnanism and it was the majority will that prevailed. Referring to the power of judicial review of the laws passed by Parliament and assented to by the President, he said that they could be declared ultra vires of the Constitution by the Supreme Court and the high courts.

He held that the independence and impartiality of judiciary were not private rights of judges. They were the rights of citizens. Ultimately, judicial legitimacy (and power) rested on public confidence in courts, in the judges themselves and in their decisions. He opined that the independence of judiciary was the most cherished goal of any legal system and the process of appointment of judges was rightly seen as a crucial mechanism to achieve this goal. Judges must be independent of executive, senior judges and their own ideology. Even in mature democracies, there was a widespread public concern that judges had been appointed through cronyism and secret soundings, he remarked.

He pointed out that India’s past experience of government appointing CJI on merit had not been emulative. It was an open secret that in the past, with government help, several pliant and submissive judges did make it to the highest court. He held that nothing impacted the outcome of cases more than the constitution of benches. In a democratic society, it was no longer acceptable for judicial appointments to be in the hands of the executive.

Government was the biggest litigator in our country and their say in judicial appointments was a cause for concern and did give birth to many apprehensions, he said. He held that the appointment system must be, and must be seen to be, independent of the government. It must be transparent; it must be accountable. He emphasised that the fundamental principle in appointing judges must be selection on merit adding that it was dangerous to believe that the government would always correctly and fairly decide on merit.

He pleaded that seniority should remain the sole yardstick for elevation of a judge as chief justice. He, however, listed the names of several judges who had merit, but were brought to the Supreme Court not on the basis of merit. They were appointed as judges of the highest court on extraneous considerations.

Commenting on a “committed judiciary”, Prof. Mustafa said that it was a distinct possibility. He held that a judge must remain committed to the Constitution as it was supreme unlike Britain where the supremacy of Parliament was the first principle of British law. With the assertion of a particular ideology by the RSS and other leaders and complete silence from the otherwise vocal Prime Minister on these outbursts, the new dispensation in judicial appointments posed dangers to the seniority norm. In order to maintain judicial independence, he suggested that the last pay drawn by a retired judge should be treated as pension.

On the Right to Food Act, he said that it did not give entitlement to the beneficiary.

Earlier, Prof. Afzal Wani, Professor of law, Guru Gobind Singh Indraprastha University, spoke on Prof. Mustafa’s contribution to the teaching of law. Prof. Manzoor Ahmed, Vice-Chancellor of Vivekanand Subharti University, Meerut in his presidential address eulogised Prof. Faizan’s erudition and observed that it was a pleasure to hear his lecture.



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