Buzzing Blogosphere: NJAC and Judicial Activism in India

Democracy, law and politics are languages that are most difficult to learn, understand and interpret. Especially in a nation so diverse, a nation that aptly (and sadly) cites a perfect example of duality, a nation that is in its 70th year of independence and yet is striving (struggling?) in all directions to live it. Last week the Apex court of the country concluded that the National Judicial Appointments Committee was ‘unconstitutional’ and impinges upon the principles of independence of the judiciary. NJAC is a step taken by the NDA government to revive the appointments and transfers of judges in High Courts and Supreme Court. The proposal is preceded by the collegium system of appointments which is set to continue after the judgement passed by SC.

We as people of the country look at the judiciary for getting justice. So anything that pertains to the judiciary has a long standing effect on the country’s ability to provide justice and fairness to its citizens. What does the Blogosphere have to say about it? Let’s find out.

The Box5 team which provides updates and analyses on law related matters opines, “In the late judgment on NJAC, the court depended on ambiguity of the “essential structure” to do precisely what it had initially contradicted to do in the Keshvanand Bharti case. The peak court is not just the sole and last mediator in the matter of established elucidation yet it additionally accepted the power to re-compose the Constitution on the appearance of “essential structure”. Given the touchy governmental issues of the nation in the previous two decades, the SC utilized it for basically non-legal purposes and extended its wildernesses to the assembly’s spaces and the official.

The trepidation communicated by the SC on political impact on judges’ arrangement is obviously unwarranted in today’s political setting where one gathering strength like in the 1970s is not the truth. Then again, there are a few examples of legal indiscretions that require a keep an eye on the unfettered force procured by the higher legal.”

The judgement is seeing mixed reactions from all sides. Where professional lawyers are positive about the NJAC, experienced CJI and SC  judges are of the view that NJAC is definitely not the solution, though it might seem like a radical development in the appointment procedure of judges. Some are of the view that the collegium system, even while maintaining the independence of the judiciary has its own defects that are hampering the system.”

Kishore V Ramsubramonian expresses his views as follows,
“Judiciary is a very important pillar of democracy. Like Legislature and Executive, the primary purpose of Judiciary is to serve the Constitution and the will of the people in a democracy. Therefore overlooking that aspect, does not bode well purely from a democratic principle. If they had an objection to the veto system in NJAC, they could have very well suggested some amendments to address their concerns rather than completely strike it down and continuing with their “self appointment” system that even some of the Judges in the bench who ruled this yesterday observed as not completely perfect.” He further adds depth saying, “Nowhere in the world in any democracy, Judges appoint Judges, no matter how independent the Judiciary is. It is the Parliament, Senate, President, or a Committee that selects Judges, not their own exclusive panel. That would only encourage favouritism, nepotism and quid-pro-quo among legal fraternity. When there are enough corrupt judges in the system, it does not guarantee a “compromise-free” selection and appointment. Hence the Parliament and all political parties should together stand against this move and take appropriate action to address this matter.”

Gautam Bhatia in his blog post at Legally India reacted as follows, “The observation is significant because Justice Chelameshwar is one of the two judges hearing the constitutional challenge to the Haryana Panchayati Raj Act, which mandates educational, property and debt-based restrictions upon running for Panchayat office. In this paragraph, there are two important points. The first is the admission that the right to participation in the electoral process (which would include both voting and standing for election) is part of the basic structure, despite not being an express “fundamental right” under Part III (an omission which has done significant damage to civil rights over the years). This would mean that restrictions upon participation in the electoral process must can only be justified through very strong reasons, and in a way that the core of the basic feature – democracy – is not damaged (using the “width and identity” test propounded in Nagaraj’s Case for deciding a basic structure violation).”

Priyanka Rao details the complete episode of NJAC on the PRS blog. From the bodies that were formed over the years to the countries following the NJAC system of appointment of judges, to composition of the committees that are responsible for the direct appointments, it is very evident from her post that the independence of the judiciary must remain intact.

Eminent Indian Lawyer Prashant Bhushan was seen welcoming the decision of the SC as he is of the view that the “independence of the judiciary in no way means judges appoint judges”. He further went on to say that, “the apex court judgement came at a time when the NDA government is seeking to “control” various institutions and “attacking” the country’s diversity, dissent and freedom of speech.” He further agreed that the collegium system too had its own flaws. He said, “Among the “many reforms” needed in the judiciary are full-time and independent institutions for selecting judges as well as receiving complaints and taking action against judges, the collegium system has its own problems as appointments through this system were “also made in a totally non-transparent and often nepotistic manner”.

Dr. K.P.Pradeep in his column in LiveLaw balances his views on both the sides and writes, “The recommendations of CJ which carries the recommendations of two senior most colleagues should normally accepted. Some of the pre-requisite qualities of a selectee, as recommended by Justice Khanna and his team are maturity of the person and according to him such maturity normally comes with years, brilliance and quick uptake being no substitute for it. The minimum age should be 45 years and the upper age should be 54 years, but in exceptional cases, Justice Khanna recommended relaxations.

As additional qualities, it suggested to consider the competence, reputation for integrity and hard work, attitude of sobriety, balanced approach and dignity of the selectees. It also suggested appointing 1/3rd of the Judges in a High Court, at the stage of initial appointment itself, from outside the State.

So, as understood by many of the critics of collegium, it is not a self made scheme by the Judges, but supported by a well researched and studied report of the Law Commission of India. Of course, many changes were made in the earlier system, through judicial interpretations, but basically, the prevailing system is in consensus with the method suggested by the Law Commission.”

The DigitalIndian team takes a detailed note of the history of appointments of judges. It also analyses who all would get appointed post NJAC and how this development will take place. The most interesting part of this article is the description of how the collegium system came into play. “The collegium system evolved after three landmark judgements of the SC known as the ‘three judges cases’: the first, second and the third judges cases.

The first judges case was the SP Gupta case. It decided on December 30, 1981, that the President could, with sensible reasons, refuse judges’ names recommended by the CJI. This gave the executive more power than the judiciary in the appointments process.

In the second judges case, a nine-judge bench of the SC went the other way and created the collegium by reversing the first judges case: the majority verdict written by justice JS Verma in the Supreme Court Advocates on Record Association vs the Union of India case on October 6, 1993, said that the CJI must be given the primary role in judicial appointments.

However, the three judges ruling in this case could not agree on the precise role of the CJI in the process, leading to years of confusion surrounding the appointment and transfer of judges.

The last judgement in the series, the 1998 third judges case, cleared things up after the President asked the Supreme Court to do so. In this case, the SC came up with nine guidelines on how the collegium system should function. It cemented the supremacy of the judiciary in the appointment and transfer of judges.”

A Bisht writes on the NJAC issue as follows, “The decision is historic in a sense that it was hearing a Constitutional Amendment after 35 years. In my view, the SC decision should be welcomed. As it upheld the independence of judiciary in India. Independence of judiciary is a must in a country like India. If there’s any interference of politicians directly in Judicial sphere; then the people of India will have NO custodian left (now Judiciary) to vouch for their rights or safeguard their rights in case of any breach of them by the rich and powerful; or by the Government. Some recent examples are Jessica Lal Murder case, Nitish Katara Murder case, Uphaar Cinema case, latest land acquisition cases etc. Remember, in all these cases the accused either had political connections or were powerful; or was the Government. On the face of it, NJAC Act seems a proactive attempt to get rid off the higher judiciary of Corruption. But on the hindsight, NJAC is nothing but trying to contain the Judiciary and bring it under the Legislature. A look at the mere setup of the appointment panel under NJAC Act is an ample proof. The NJAC Act, had proposed that appointments be done by a six-member body, headed by the Chief Justice of India, and including two senior-most SC judges, the Union Law Minister and two “eminent” persons. Even when one looks at the Judiciary and non-judiciary component in this panel, it’s 50-50 (Three Judges …. and … The Union Law Minister and two eminent persons). Hence there’s no independence of Judiciary here.”

VVP Sharma, a columnist on ibnlive.com has positive things to say about the SC verdict as follows, “India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.

What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.

Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.”

Indian Lawyer and former Chief Justice of Delhi High Court, Rajinder Sachar has questioned the history of appointments over the years. “I must say that the judiciary itself has a lot of explanation to do for previous bad appointments. The self exculpatory effort at bad appointment is hard to sustain in view of the information given in 1959 by the Home Minister that since 1950, as many as 211 judges were appointed to the High Courts and all appointments except one “were made on the advice, with the consent and concurrence of the Chief Justice of India.” And out of the 211, as many as 196 proposals which were accepted by the government had the support of all persons who were connected with this matter.”
He further adds, “The role of the Chief Justice is reduced to a very low position because the suitability of a person for appointment as a judge even if is acceptable to a majority of the members of the NJAC can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons, neither of whom represent or purport to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.”

All in all, the independence of judiciary is of prime importance to a country like India which is a follower of free and fair democratic processes. Even after 7 decades of independence, we are still in the evaluation stage of our very own democratic ways of governance. We feel that the judiciary system needs an overhaul and the powers that be need to think hard about what shape these changes will take. What are your thoughts? Please do share in your views and opinions in the comments below.