Wednesday 21 October 2015

NJAC Struck down

The Supreme Court’s striking down of the 99th Amendment (National Judicial Appointments Commission act, NJAC) seems to confirm that Indian institutional development follows a maxim of its own: Thou shalt meet overreach with more overreach. The judiciary-legislature tussle in India has never been based on first principles. A dominant executive sought to undermine the independence of the judiciary in the 1970s. In response, the judges created an appointments process where they could, as Justice J. Chelameswar writes, “exult and frolic in our emancipation from the other two organs of the state”. The legitimacy of this arrangement, where the judiciary effectively shut out other branches of government, was always dubious on constitutional grounds. We put up with it because it seemed to have the effect of securing judicial independence. But then allegations of corruption, a general sense that the judiciary itself had become unaccountable, led to a clamour that judges could not be the sole judges of their own cause. Unaccountability, rather than independence, became the bigger worry.

Arguments against NJAC:
  • Parliament, with rare political unity, passed the NJAC act. It was right on two grounds. It had the power to pass such a law; and the law was premised on the sound thinking that the appointments process needed to be broadened. But, as this column argued (‘Whom do you trust?’, May 14), Parliament overreached in a design and institutional sense. The composition of non-judicial members and the presence of the law minister would result in an NJAC that, in all probability, would undermine the independence of the judiciary, even if it possibly made it more amenable to outside input.
  •   First, as Soli Sorabjee has pointed out, since the government is a major litigant, giving it an edge in appointments would amount to fixing the courts. 
  • Besides, the executive had sought to bring persons of eminence into the voting process, with veto powers. It is a woolly category that consists of unspecialised people without judicial experience, and the impression that it can be manipulated politically is scarcely imaginary. Fali S. Nariman had suggested that such persons could be included as sounding boards, as part of “decision-making, not decision-taking”. The need for an unbreachable firewall between the judiciary and the executive becomes obvious in politically extreme circumstances, when only the law stands between the citizen and the arbitrariness of power. In the light of lived experience, such a situation must always be guarded against.
  •  Current NJAC institutional design would lead to a kind of adverse “structured bargaining”. Given the voting rules of the NJAC and the presence of the law minister, this was a likely outcome.

Arguments in favour of  NJAC:
  • standing of the judiciary has been reduced in the eyes of the public by pervasive inefficiency and embarrassing instances of corruption, it is now asserted that better functioning of the judiciary must not be secured at the expense of its independence.
  •  The judiciary believes that judicial independence cannot be maintained without two things: First, the primacy of the judiciary in the appointments process. The second and more controversial claim is that judicial primacy is challenged and independence impugned if the chief justice’s views can be rejected by the executive on grounds other than “dubious antecedents”. 
    • B.R. Ambedkar’s authority to suggest that judges are to be mistrusted more than the executive.
  • It is not clear why only judges can give inputs on judicial quality.
  • . If judicial independence is a core value, so is an efficient and well-functioning judiciary. And his starting point is that the current system does not meet the latter objective.  
  • In short, there is no empirical reason to trust the judiciary more than the executive.
  •  The present system has grave deficiencies, in terms of efficiency, accountability and even competence. 
  • Nowhere in the world judiciary appoints itself - no principle of primacy!
    • US - known for its independence - is completely elected by the Exec and Legis!!
    • Same for UK, South Africa etc.
  • Veto power must continue (2 at present) - 
    • We just need 100 appointments for HC and arnd 5-6 for SC - cant be decide onto non-controversial names??
  • Justice Verma himself - pioneer of Collegium system - was against it
    • he appointment of judges after 1993 by the collegiums has been a matter of considerable controversy. Eminent jurists like H.M. Seervai in India and Lord Cooke of Thorndon of the Privy Council have criticised these judgments, as they were an extraordinary tour de force in the name of independence of the judiciary. The SC rewrote the provisions of the Constitution for the appointment of judges, eliminating the executive’s role in the appointments process for all practical purposes. The establishment of the collegiums was highly criticised by Justices V.R. Krishna Iyer, Ruma Pal and other judges. Even Justice J.S. Verma, who wrote the majority judgment in the Second Judges case, later expressed his disappointment in the manner in which judges were appointed by judges themselves. Even the Second and Third Judges judgments nowhere stated that the appointment of judges by the primacy of judges was a basic feature of the Constitution
  • Executive chosen judges are known for their independent judgements - so no emperical evidence that independence will be lost 
    •  For example, Justice Krishna Iyer was appointed an SC judge by the government on July 17, 1973. He was remarkable for his independent judgments, particularly the refusal to grant an unconditional stay on the decision of the Allahabad High Court setting aside the election of Indira Gandhi.
    • The SC judgment in the NJAC case is a remarkable judicial innovation to legalise its appointing power and preserve it in its hands.
  • Way forward:
    •  Bring in a contitutional amendment - with entire structure and functions of NJAC as part of the constitution - difficult to strike down by the Judiciary
    • COllegium system has to go - CREATIVE DESTRUCTION


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