NJAC judgment stems from fear of losing supremacy
by Ganesh Sovani on 21 Oct 2015 6 Comments

The 1030-page verdict delivered by the Supreme Court of India  declaring The National Judicial Accountability Commission Act, 2014 as ‘unconstitutional’ has created consternation across the country. Four of the five judges on the bench struck it down as void, while Justice Chelameswar was the sole dissenter.


Until the 1993 verdict by a nine-judge bench of the Apex Court, regarded as the Second Judges case, judicial appoints in India at both High Court and Supreme Court level were governed by Article 217 and Article 124 of the Constitution of India, wherein the executive had a definite ‘say’ in who would be appointed to the bench, in ‘concurrence’ with the Chief Justices of these courts.


However, the 1993 verdict replaced the word ‘concurrence’ with ‘consensus,’ and even though there is no ‘constitutional provision’ of collegium system, this was created and has been in practice for the last 22 years, as any judgment laid down by the Supreme Court acquires the force of law as per Article 141 of Constitution of India!


Late Justice JS Verma, who was one of the judges on the bench that delivered the 1993 verdict, at a subsequent stage raised a question mark on the very ‘efficacy’ of the collegium system, and in a way became an advocate of the Judicial Commission that was subsequently sought to be created.


India’s maiden female Judge to the Supreme Court, Justice Ruma Pal, has gone on record to say that the process of selecting judges to the apex court is ‘one of the biggest secrets in India’. This, in a nutshell, put its very credibility into question.


Although the NJAC Bill, 2014 that was introduced in both the Houses of the Parliament in August last year, got ‘unanimous approval’ from MPs across party lines and was also ratified by as many as 20 State legislatures, it was essentially a Bill that was ‘conceived’ by the Congress party when UPA II was in power.


The setting aside of the NJAC Act by the Supreme Court has been hailed by its detractors as a ‘historical verdict protecting the independence of the judiciary’, but those in support of the legislation have expressed ‘dissatisfaction’ for pouring water on the ‘will of the people’.


The process of appointing of judges to higher courts is so secretive that till the President of India signs the appointment warrant, the name of the appointee remains shrouded in mystery! There is no information to the public as to the criterion on which a particular person’s name has been approved or another prospective candidate’s name disapproved or rejected.


On carefully analysing the objections raised over the NJAC, one could easily learn that the presence of a ‘law minister’ and ‘two eminent persons’ have become a sore point to many. It is felt that there would ‘political interference’ in judicial appointments due to the presence of such ‘political person’ (who is obviously a member of either house of the Parliament having been elected on a political party’s ticket). The detractors of the commission also feel that ‘veto power’ vested with the ‘two eminent persons’ would undermine the authority of the Chief Justice of India and two next senior judges of the Apex Court if names they recommended were vetoed by the two eminent persons.


One must appreciate that the ratio of the number of judges to the political person (if one treats a minister as such) then is 3:1. Therefore, the argument of undermining the authority / supremacy of the judges by the presence of the minister in the composition of a six-member committee is untenable.


Those who are making loud noises over the presence of a minister on the commission are turning a Nelson’s eye to another in-built provision under Section 6 (7) of the Act itself, wherein the Commission is entrusted the task of ‘eliciting’ the views of the Governor and the Chief Minister of the Sate concerned before making such recommendation for the appointment of an eligible candidate for the High Court judges post.


Suffice it to say that that there is a word ‘shall’ under Section 6 (7) which makes it mandatory on the part of the Commission to seek the views of Governors and Chief Ministers. So how come those who are crying foul over the presence of a law minister on the NJAC, forget that there is a duty to elicit the views of Governors and Chief Ministers; the latter are clearly ‘political persons’ even if one assumes that the entity in Raj Bhavan is not a political person! It bespeaks of double standards on the part of those crying wolf over the Act!


Even as opponents of the commission are saying that ‘veto’ power is vested in the two eminent persons, the same is unacceptable since the real veto power lies with the President of India, who derives power by virtue of section 7 of the Act to ‘return’ the name suggested or recommended by the Commission for the appointment either in the High Courts or to the Supreme Court, without assigning any reason.


Therefore, one feels that the opposition to this law stems out of fear that the ‘supremacy’ of the Supreme Court in the appointment of judges to higher courts might wane if the NJAC replaces the two decade old collegium system.


It would not be out of place to mention here the double standards of the Congress party which is singing a different tune after Friday’s verdict, when the party had conceived the original Bill. Moreover, when the Law Commission of India submitted its 121st Report to then Law Minister P Shivshankar in 1987, it recommended the setting up of a commission for the appointment of judges. The Congress party has never raised an objection to this recommendation all these years. Can there be any other example of the duplicity of a political party?


The NJAC hearing in the Apex Court consumed more than five to six months as a result of which lots of confirmations of and fresh appointments as additional judges at High Court level are pending. There are six High Courts in the country which are headed by the “In Charge Chief Justices’.


Such a situation demands at least an immediate confirmation of judges (if found to be just, fit and proper for confirmation) and also appointments of Chief Justices in six courts, as administrative matters in the High Courts may be suffering. This should be an urgent priority.  


The author practices in the Bombay High Court; ganesh.sovani081@gmail.com

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