Supreme Court of India declares NJAC Unconstitutional : Why?

Is Supreme Court correct in declaring the National Judicial Appointments Commission (NJAC) Act, unconstitutional?

This is the question many people are asking for the past couple of hours.

But before airing my thoughts on the matter, let’s have a look into what happened in the Supreme Court of India yesterday. According to Indian Express,

In a historic ruling that the primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution, the Supreme Court today declared unconstitutional an amendment to validate the National Judicial Appointments Commission (NJAC) Act, which had contemplated a significant role for the executive in appointing judges in the higher judiciary.

Thus the proposed system, or the National Judicial Appointments Commission (NJAC) Act, which was unanimously passed by both Houses of parliament (Legislature), was set aside by the Supreme Court. A five-judge Constitution Bench ruled with a 4:1 majority that judges’ appointments shall continue to be made by the Collegium system in which the Chief Justice of India will have “the last word”.

Thus the Collegium System and not the NJAC will appoint judges in the higher Judiciary .

In the 20-year-old collegium system, prescribes the appointment of judges by a panel comprising five senior most judges of the Supreme Court and high courts, with the power to confirm appointments despite resistance, if any, from the government.

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. These two would be selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.

Now lets come to the SC decision.

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 Ligislature. A look at the mere set-up 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.

But on a closer look, there are significant chances that the voice of the Judiciary in the panel is dominated by the politicians taking one of the judges to their side. Even if that doesn’t happen, the real weight of Judiciary and non-judiciary in this panel will be … 3:5. How ? You will know in a while. Keep adding.

Last but not the least, in NJAC, there’s the provision for two “eminent” persons”. This can’t be read as two “Eminent Jurists”. Hence anyone who is making an image of some top jurist such as Fali S Nariman etc. necessarily holding the seat, is making a wrong presumption. The NJAC panel can take two “eminent persons” who are non-jurists. And there’s real likelihood of that happening as the selection panel choosing two “Eminent persons” under NJAC constituted of the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.

The logic that NJAC will curb corruption doesn’t stand on its feet either, as setting up a body, is not a tool to curb corruption.

Many people arguing in favour of NJAC are saying that NJAC can be experimented upon, as even before that the country had the Law Minister. The fact is true, the logic is not.

The Law minister heading the Ministry of Law and Justice is the highest organ of the Government of India which deals with the management of the legal affairs, legislative activities and administration of justice in India through its three departments namely the legal affairs department, legislative department and justice department respectively. The functions of these departments are to draft principal legislation for the Central Government, advise the various Ministries of the Central Government and ensure justice is served in the country. The first two functions are self explaining; the last one ‘ensuring justice’ can be explained a bit more.

Ensuring justice DOES NOT mean giving justice. It means ensuring that there are adequate Courts, judges and other bodies etc. to dispense justice. The act of giving justice is the domain of the judiciary or any body or person which is given such powers by the judiciary. In the eyes of the judiciary, an elected Government is nothing more than a person who can make errors and hence can be made plaintiff (who files case), Defendant (who has to defend the charges made against it) or a Witness.

To end, the independence of Judiciary must be upheld and celebrated. The way we support and celebrate the independence of Media. Simply because they act as a control on irresponsible or unhindered legislative (Political) and Executive (you can see it as Government Officials) actions.

Thus, rather than saying that bodies such as NJAC will help curb corruption in higher judiciary; we should say that any proactive action against such ills should come from within the judiciary. In other words, we can demand Judiciary to take proactive steps to curb its ills itself. The way Indian Media is made responsible for its ills. Remember, the News Broadcasting Standards Authority is an independent body set up by the News Broadcasters Association (a body of news broadcasters). Its task is to consider and adjudicate upon complaints about broadcasts. It’s an independent body and is not under the Government control. The idea here is to upheld the independence of Media, which is considered the fourth pillar of democracy, after Legislature, Judiciary, Executive and Media.

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