The danger of reciprocity(Supreme Court and the Government)

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 The danger of reciprocity(Supreme Court and the Government)

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• What judges should possess : It is the right of citizens that judges must possess qualities like independence, impartiality and fearlessness. If people trust the courts, their legitimacy is maintained.
• Collegium decisions questioned : Since the two new appointments to the S.C. are under a lens, it undermines the whole process of appointment. The government is not only the biggest litigator, but also a threat due to abuse of power.
• Forward-looking or looking-forward : Some appointments to the CJI post were purely on the basis of judges having supported the government's stand in some crucial matters. Examples - (a) J A.N. Ray, CJI in 1973, and (b) Justice M.H. Beg, CJI in 1977. Both had favoured the govt., so were called "looking forward to the office of CJI"! J Ray favoured bank nationalisation decision of Indira Gandhi, and J Beg held that democracy is part of basic structure, but free and fair election is not.
• Collegium came about when governments were weak : George Orwell said that the government is everywhere, and judges too will get influenced. It was when governments were weak in the 1990s, that the SC developed the Collegium system.
• Power and influence : A leader can be powerful and influential. Once someone is favoured, he is obligated to reciprocate some day.  The norm of reciprocity says "People should help those who helped them" and "not injure those who have helped them".
• NJAC struck down : Then CJI Khehar spoke at length on why reciprocity will play a part in judiciary if NJAC came into being. The "feeling of gratitude" will impact the independence of the judiciary. That was also spoke by Dr Ambedkar earlier (and hence insulation needed).
• Supersession is bad : If the government can appoint someone the CJI out of turn, then a race to be seen as useful to the government will begin, to ensure one gets the CJI's post. That risk was highlighted both by J M.C. Chagla, and J H.R. Khanna.
• Opposition to the Constitution : We know that the Right today opposes our Constitution. The government will likely push the Collegium constantly, and if reciprocity comes into play, its independence will be gone. Our judges have remained loyal to their oath, and decide cases without fear or favour. That should never change.
• The frightful prospect : Will we soon see a 15-judge Bench overturn the Kesavananda Bharati v. State of Kerala case, 1973, thereby overturning the basic structure doctrine?
• Summary : Complete independence of the judiciary is the only way judicial uprightness and constitutionally proper decisions can be ensured.

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