NJAC Verdict: Erosion of faith in Judiciary
Supreme court in it's verdict on October 16,2015,has declared the 99th constitutional amendment as unconstitutional.This act is related to establishment of National Judicial Appointments Commission(NJAC) for appointment of Judges to Supreme court and high court.
Recalling the history.
Let's first recall the history that led to enactment of 99th amendment.The Article 124 of Indian constitution says that Every judge of supreme court shall be appointed by the president after consultation with the Chief Justice of India.This word 'consultation' has been interpreted by supreme court in different ways in different judgements.In First judges case(1982),SC held that consultation doesn't mean concurrence of opinion.It only implies exchange of views.But in Second judges case(1993),consultation was interpreted as concurrence of opinion.It said the advice of CJI in appointing judges is binding on President.In rendering such advice CJI has to consult two seniormost judges(It has been changed to four seniormost judges in third judges case).This gave way for the present collegium system,where judges appoint the Judges.By this way judiciary has acquired powers,which were never granted to it in the constitution.India is the only country with such a system.
Collegium system and NJAC.
More than 20 years of working of collegium system since 1993 has shown that not everything is fine with it.It has also been admitted by present bench.It has led to appointment of many dubious people ignoring many meritorious candidates.It was opaque and unaccountable.The National Commission to Review Working of the Constitution(NCRWC) headed by Justice Venkatachalaiah and Administrative Reforms Commission have also noted it.Both of them have recommended setting of NJAC.
In accordance with these recommendations,NJAC Act was enacted.NJAC consists of six members:CJI,two seniormost judges of SC,Law minister and two eminent persons.These two eminent persons are appointed by a committee consisting of PM,CJI and Leader of opposition.This provides for a broad based framework,where judiciary,executive and civil society organizations will have a voice in appointments. It was passed unanimously in both the houses of parliament and more than twenty states have approved it.
The Judgement.
The SC has declared NJAC Act as unconstitutional,resorting to the argument that 'Independence of Judiciary',which is a part of basic structure of constitution has been disturbed by it.
By doing so it has disrespected the collective will of the parliament.The bench should not have scrapped the whole act.Instead,It could have made changes to it in order give judiciary an upper hand.It could have recommended veto power only to judges instead of any two members in the act.Another option could have been to give CJI veto power,while appointing two eminent persons to NJAC.It could have achieved it's objectives constructively.But it resorted to assert Judicial primacy.
Indian constitution neither envisages the judicial primacy as in United States,nor the parliamentary sovereignty as in UK.It tries to synthesise balance between them to give both of them equal powers.This judgement has disturbed this delicate balance,which may set stage for Executive vs Judiciary battle as witnessed in 1970s.
The court is wrong in saying that executive's say in appointment will bring partial judges.The system before 1993,where executive had a major control over appointments has produced many judges with impeccable integrity.Example are Justice Venkatachalaiah,Verma,Hidyatulla etc.This is because,there are other mechanisms,other than appointing procedure to maintain independence of such crucial offices.The institutions of Election Commission,CAG,UPSC which are appointed by executive have worked fairly well and independent because of this reason.They have truly acted as bulwarks of Indian democracy. Therefore,NJAC,where executive will just be a partner in appointment decisions was a progressive step.It definitely deserved a fair chance.
The political class in India have not acted always in the public interest.They have done many things to meet their selfish ends.It made public to lose faith in them.It's the judiciary,which acted as champion by giving many judgements which upheld the rights of citizens and Indian democracy.But going by this judgement,the judges acted more like politicians.As Mr.Jaitley has rightly pointed out,it has ignored many other basic features of Indian constitution in protecting independence of judiciary.The judgement itself looks unconstitutional.It has eroded people's faith in judiciary.It has set a wrong precedent,where public now views it with suspicion.But let's hope the future hearings called by the bench to improve collegium system,brings meaningful changes instead of power struggle between executive and judiciary.
Recalling the history.
Let's first recall the history that led to enactment of 99th amendment.The Article 124 of Indian constitution says that Every judge of supreme court shall be appointed by the president after consultation with the Chief Justice of India.This word 'consultation' has been interpreted by supreme court in different ways in different judgements.In First judges case(1982),SC held that consultation doesn't mean concurrence of opinion.It only implies exchange of views.But in Second judges case(1993),consultation was interpreted as concurrence of opinion.It said the advice of CJI in appointing judges is binding on President.In rendering such advice CJI has to consult two seniormost judges(It has been changed to four seniormost judges in third judges case).This gave way for the present collegium system,where judges appoint the Judges.By this way judiciary has acquired powers,which were never granted to it in the constitution.India is the only country with such a system.
Collegium system and NJAC.
More than 20 years of working of collegium system since 1993 has shown that not everything is fine with it.It has also been admitted by present bench.It has led to appointment of many dubious people ignoring many meritorious candidates.It was opaque and unaccountable.The National Commission to Review Working of the Constitution(NCRWC) headed by Justice Venkatachalaiah and Administrative Reforms Commission have also noted it.Both of them have recommended setting of NJAC.
In accordance with these recommendations,NJAC Act was enacted.NJAC consists of six members:CJI,two seniormost judges of SC,Law minister and two eminent persons.These two eminent persons are appointed by a committee consisting of PM,CJI and Leader of opposition.This provides for a broad based framework,where judiciary,executive and civil society organizations will have a voice in appointments. It was passed unanimously in both the houses of parliament and more than twenty states have approved it.
The Judgement.
The SC has declared NJAC Act as unconstitutional,resorting to the argument that 'Independence of Judiciary',which is a part of basic structure of constitution has been disturbed by it.
By doing so it has disrespected the collective will of the parliament.The bench should not have scrapped the whole act.Instead,It could have made changes to it in order give judiciary an upper hand.It could have recommended veto power only to judges instead of any two members in the act.Another option could have been to give CJI veto power,while appointing two eminent persons to NJAC.It could have achieved it's objectives constructively.But it resorted to assert Judicial primacy.
Indian constitution neither envisages the judicial primacy as in United States,nor the parliamentary sovereignty as in UK.It tries to synthesise balance between them to give both of them equal powers.This judgement has disturbed this delicate balance,which may set stage for Executive vs Judiciary battle as witnessed in 1970s.
The court is wrong in saying that executive's say in appointment will bring partial judges.The system before 1993,where executive had a major control over appointments has produced many judges with impeccable integrity.Example are Justice Venkatachalaiah,Verma,Hidyatulla etc.This is because,there are other mechanisms,other than appointing procedure to maintain independence of such crucial offices.The institutions of Election Commission,CAG,UPSC which are appointed by executive have worked fairly well and independent because of this reason.They have truly acted as bulwarks of Indian democracy. Therefore,NJAC,where executive will just be a partner in appointment decisions was a progressive step.It definitely deserved a fair chance.
The political class in India have not acted always in the public interest.They have done many things to meet their selfish ends.It made public to lose faith in them.It's the judiciary,which acted as champion by giving many judgements which upheld the rights of citizens and Indian democracy.But going by this judgement,the judges acted more like politicians.As Mr.Jaitley has rightly pointed out,it has ignored many other basic features of Indian constitution in protecting independence of judiciary.The judgement itself looks unconstitutional.It has eroded people's faith in judiciary.It has set a wrong precedent,where public now views it with suspicion.But let's hope the future hearings called by the bench to improve collegium system,brings meaningful changes instead of power struggle between executive and judiciary.
Though Indian constitution doesn't envisages judicial primacy directly anywhere but Independence of judiciary is part of basic structure which in turn roots for judicial primacy. The very idea of participation of political executive in any judicial process is erratic, and it contempts judicial independence. Though old collegium has so many flaws in itself, NJAC cannot be seen as a alternative for it. The need of the day to do structural modification to collegium system , rather than blaming judiciary for its self defence. The judges in favour rightly mentioned favour back approach might totally rotten the trust on judiciary.
ReplyDeleteYour argument,the participation of executive in appointments contempts judicial independence implies that,nowhere in the world there is judicial independence,as nowhere in the world solely the judges appoint the judges.But on contrary,we witness more vibrant judiciary in other countries than in India.Judicial independence definitely needs judicial primacy in appointment,but not judicial exclusivity.
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