Since the Hon’bles mentioned the merit (A look into the selection process of Indian judges, May 2020)

While we were cussing the lockdown, making speculation about the extent of the virus, and discussing the 20 lakh crore (INR) package, something remarkable happened in the country. The Supreme Court of India came out with its judgement on the petition submitted before the three-judge bench, regarding the NEET medical test and Minority status of the Educational Institutes. 
 
The medical colleges came up with a petition that since they have got the minority educational institutes under Article 30 and Article 19 of the Constitution, they enjoy the right to administer their own colleges as per their convenience and do not need NEET. No doubt the petition was disposed of, but in between something interesting happened. 
                                    
The Hon'ble Supreme Court came up with the notion of “merit”. And for a normal person who is not born in a family, which is surrounded by influential people, it is the idea of merit which secures opportunity for her. Also, it is the merit of the people governing such important positions, which let us believe in the working of the organization and earns the organization its credibility. Therefore, it is important that there should be a concept of merit in all those institutions which are of utmost importance, which includes the judiciary as well. Shouldn't the judiciary, too, be cautious about the procedure of merit?

Judiciary in today's democracy 

Today, the functions of the judiciary are not limited merely to the pronouncements of the judgements but it has expanded to more fields of governance. The judiciary is not only defending the law but it is also making the law and also directing the authorities to implement the law. In simple political science language, democracy rests on the principle of the 'separation of power', where there is no institution that is all-powerful and has the authority of almost doing everything. 
                                                                                              
All democracies try to practice it. We have the ministers (the executive) who direct the authorities to implement decisions, we have legislature (parliament) to make laws and we have judiciary to see if the law is constitutional or not. But sometimes all three organs interfere in each other's business, and sometimes there are instances of excessive interference. 

Remember the BCCI Case? 

In the BCCI Case, the Supreme Court felt that the administration of the BCCI is not running as it should be. Then what did it do? It asked retired Chief Justice of India, Justice Lodha, to draft new rules as to how BCCI should be run. During this whole development of events, the Supreme Court made laws (which is generally done by the Parliament) and made appointments (which is done by the Government). The Supreme Court, in this case, assumed the all-powerful status and exercised all the powers which democracy offers by itself. And these decisions did not have any responsibility towards the people. 

While making these decisions, not a single time it was considered that what if the decisions go wrong? Who will be responsible? Certainly, those who made these laws were and are not responsible to us. We hold the elected government responsible and also we can throw them out of power after five years if their decision stands uncorrected. What responsibility the Supreme Court and its Hon'ble Judges hold when they make a decision? Isn't it true that whatever decisions were made in the context of the BCCI case, all of them have backfired?

The logic which was used and still used in such instances is that it is the failure of the government that people come to us (the Supreme Court) to implement changes in the existing system. Fair enough. Point taken. But then comes an important aspect of the whole exercise - what is the merit of the people who are exercising this enormous amount of power through which they can make laws, have them implemented and also validate? 

Why merit is questioned? 

It is correct that the Supreme Court judges are far more knowledgeable and intellectually superior than a common man, but what is their status among their peers? Why this question is asked, because there is no clear mechanism as who will be appointed as the judge of the high court and what will be the requirements for that? Practising senior lawyers can be appointed as High Court judge if it is found that they are talented enough to hold the position of the judge. A sessions court judge too can be appointed as the supreme court judge, if she is considered to be meritorious enough. 

But the question is, what stands for merit? What is the definition of merit? Under what circumstances one person is chosen and the other is not? There are no guidelines throughout the country. The decision is left into the hands of the judges themselves. 

This situation must be considered attentively. A person who is going to exercise huge power is unknown to the common people of the country. His merits are unknown, why he was promoted on the first place is unknown, all the decisions he is going to make, do not come under any popular responsibility. So can we leave this important institution in a state where there is no transparency? 

In 2019 we saw a case (the NJAC) in which the Supreme Court of India filed a petition in the Supreme Court. Yes, you read it correctly, the Supreme Court of India filed a petition in the Supreme Court of India against the Union Government. The petitioner was the Supreme Court, and the Supreme Court was going to pronounce judgement. Now consider if such a situation may arise again in future, will the decisions of Supreme Court shall be trusted if there will be no transparency in the judicial appointments? How do we know that the person sitting on the chair will be the best possible legal luminary of the country at that point of time? (Ref)

Therefore, when the Supreme Court is prescribing the conditions for merit in educational institutes, it is also necessary that the Supreme Court must come up with a mechanism that provides a transparent procedure for the appointment of judges in the judiciary, both in High Courts and in the Supreme Court. This will only strengthen the confidence of "We, the people of India".

Credits: Shubham Rajput