Ashok Bhan
On October 15, the Constitution Bench verdict of the Supreme Court has declared NJAC Act as unconstitutional on the plea that it would affect the independence of judiciary. The 99th constitution Amendment Act, which was passed unanimously by both houses of Parliament and endorsed by majority of the States, has been struck down. The Apex Court has allowed the collegium system to continue, for appointment of Judges of the High courts and the Supreme Court – This system was introduced by judge made law, although there is no provision in the constitution – no where in the world is such unique system prevalent” Judges Select themselves, and Judge the Judges”
The Indian High Court Act of 1861 and Govt. of India Act 1935 guaranteed, the tenure of Judges and prescribed professional qualification of the Judges. After Independence, articles 124 to 147 and 217 of the Constitution of India deals with establishment of Supreme Court and appointment of Judges of Supreme Court and High Courts. In all these enactments and the Constitution the power to make appointments is vested in president (The Sovereign) in consultation with Chief Justice.
NJAC Act prescribed a six member committee headed by Chief Justice of India, two senior most Judges , the Law Minister and two eminent persons (nominated) to replace the collegium for appointment of judges.
At the heart of the verdict after reading 1030 pages lies the question ‘who will select and judge the Judges’?–
The majority of Hon’ble Judges have struck down the enactment on strong plea of its interference in the Independence of Judiciary, which is the basic feature of the Constitution.– Some of the important pleas the Hon’ble Judges have spelt out, succinctly for holding the NJAC Act as Unconstitutional.
The hon’ble presiding Judge said–Never has there been a simple case in which the Government said that the person has no integrity but the Collegium of the said court had pushed for the appointment.
The dissenting Hon’ble Judge has said – two members of NJAC can over ride the opinion of other four and stall the recommendation. There is nothing illegal inherently about such prescription.
Law Minister’s presence in NJAC casts a doubt on the principle of Cabinet responsibility said another Hon’ble Judge on the Bench.
‘Glasnost and a perestroika” is required to improve the system of collegium, hence the further need of hearing for suggestions said another Hon’ble Judge.
The will of the people is the Constitution which is supreme, while Parliament represents the will of majority at a given point of time, said another hon’ble Judge.
There have been a series of judgments that led to a belief that judiciary is not in tune with the ground realities of people of India craving for economic growth. Judges were seen as not too socialist in 1970’s – that led to misunderstanding with PM Indira Gandhi.
2012 Supreme Court cancelled all 122 telecom licenses of 2G Scam, holding that First come first served policy was illegal. Supreme Court banned iron ore mining in Goa & Karnataka and held that natural resources can only be sold by proper auction, although allocation of natural, resources is in executive domain.
Supreme Court started monitoring the CBI investigations. Thus the judiciary has been criticized of over reaching and taking over various executive functioning.
As a regular practicing Senior Advocate in Supreme Court and being part of dynamics of dispensation of justice, I say, judiciary has reacted to executive’s interference in the exercise of Power, by safe guarding itself through series of Judgments, cutting out executive role in judicial appointment and transfers. The third Judges case 1998 created a close door mechanism of five top Judges, by seniority headed by Chief Justice of India to select brother and sister Judges. Three senior most judges of High courts headed by Chief Justice in the states. The Government has the option of returning the collegium’s recommendation once. Beyond that, it is bound to accept the collegium’s recommendation. We supported this change. The reason to support this was primarily the executive choice because from 1980 onwards till 1998, the buzz in the corridors was – “one need not know the law but the Law Minister” to become a Judge –
Now the question remains – how do you address the following issues – I say – no Judge has ever been found guilty of misconduct or corruption or favor or ill will. No Judge has ever been punished for the allegations of corruption. The Judges are always wrapped in a clock of inviolability. No one can file a case against a judge without permission of the Chief Justice. Any untoward word would invite contempt of Court. Two third of majority of vote in both houses of Parliament is needed to impeach a judge. Judges exercise the constitutional power to declare a law passed by legislative or Parliament void and illegal and after exercise executive and legislative powers via Public Interest Jurisdiction –
Therefore, I support the views expressed by Justice Kurian Joseph – that collegium system which has been kept in tact and in place by the constitution bench of Apex Court by its verdict on October 15, 2015 needs improvement, using his lordship’s words – Need for Glasnost and a Perestroika” For that a hearing has been fixed
There are complex Constitutional intricacies involved – Inherently it can be described as battle for control – or a turf war, to strike a harmonious balance. The scuffle between two pillars of the State may be normal and natural but if it gets blown up, the democracy will be in peril – the courts have spoken out, but believe you me and be rest assured the real judgment on who should appoint judges is yet to come.
(The author is a Supreme Court lawyer)
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