By Mihir Jha
On Friday, in an important and hotly debated judgment, the Supreme Court ordered that the collegium system was to continue to select judges holding that the National Judicial Accountability Commission was unconstitutional. But given the kind of mediocrity that reflects off media commentaries, I am afraid that people could arrive at the wrong conclusions about Supreme Court and integrity of judges.
I have been following the NJAC case and the public discourse on it very closely. There is a clear pattern in lies being propagated to distort things and show judiciary in poor lights. This is not to say that judiciary does not need an overhaul. Certainly, India needs more transparency in judicial appointments and every citizen has all rights to know every gory details pertaining to elevation of any judge in higher judiciary. However, I see media and columnists deliberately failing the real cause and championing a sinister agenda of politicians to usurp judiciary. Letâ€™s not forget that Judges have become a soft target of politicians and social media activists.
This article is humble attempt to separate wheat from chaff by busting some of the most common myths
Myth 1: In collegium system, government has absolutely no say in appointment of judges
The biggest myth that has been created around collegium system is that it is opaque and govt has no say whatsoever in appointment of Judges. But many have deliberately hid the fact that in collegium system also, names of judges who are recommended for elevation go to the Law Ministry that seeks clearance from Intelligence Bureau and it is only upon clearance by Law Ministry that one can be appointed a Judge. One may quote Mukul Rohatgi and say that these are just ceremonial procedures. However, this is not really quite true. Check here to know that government has, in existing collegium system, final say on appointment of any judge with questionable integrity. It is interesting to note why government didnâ€™t work to make provisions so that intelligence reports of these recommended judges could be made public. Would it not have made judges more accountable to the people of India? Does it not offer a check and balance by government over the judiciary?
Myth 2: Nowhere in the world do judges appoint judges
What works on an iPhone, need not work on Android. What works in rest of the world, need not work in India. That is the first point. Secondly, while there is no harm in referring to what rest of the world is doing, what is important to note is selective truths that are being propagated about these models to justify and defend a sinister proposal like NJAC. Take, for example, this assertion in this column, â€śIt is worth noting that in the US, judge selection is entirely a political process (existing judges have no say) and in Britain (for England and Wales), the 15-member Judicial Appointments Commission has 15 members, among whom only five are judges. The chairman of the JAC is a lay person, and not a judge.â€ť It wouldnâ€™t have taken more than a paragraph for the writer to tell us thatâ€” one, In UK, except 3 of 15 members of JAC, rest all are selected through open competition while in the proposed NJAC in India, there is not even a mention of a competitive exam. Two, if judges donâ€™t appoint judges, it doesnâ€™t mean politicians should appoint judges. In UK, itâ€™s neither politicians nor the judges. Read more about an ideal NJAC here. Such are the ways in which an ecosystem is being created by learned journalists and several opinion leaders to prepare people to support government in handing over Judiciary into the hands of Politicians.
Myth 3: NJAC didnâ€™t challenge independence of judiciary
The proposed NJAC was supposed to consist of 6 members which included two eminent persons nominated by trio of Chief Justice of India, Prime Minister and Leader of Opposition. The bill mentioned absolutely nothing about criteria that would have determined eminence. Including the law minister, committee would have consisted of a total of 3 members coming directly [Law minister] or indirectly [eminent persons] from legislature. Now, the most interesting aspect of this committee was the facts that two members had the power of veto to deny elevation of a Judge. Thus, denial of 2 members would have been enough for non-appointment of a Judge. So, you bring in people from legislature and give veto powers to any two members and say that Independence of Judiciary is still maintained. If that is not usurping Judiciary, what is it? And, our learned columnists and right wing intellectuals donâ€™t get tired giving justifications of how NJAC would solve all the problems.
Myth 4: There is a conflict of interest for judges but no such conflict for politicians
This column says â€śWhile the details of the reasoning behind the bench's verdict are awaited, the point that needs underscoring is that the judges are themselves an interested party in this verdict. So the judgment can hardly be called impartial or credible. A larger constitutional bench needs to rehear the matter.â€ť It is evident that the learned columnist understands the concept of â€śconflict of interestâ€ť and considers this worth questioning integrity of someone. However, despite writing a dozen articles on NJAC, he has comfortably ignored the conflict of interest arising out of the fact that government, wich by its own admission, is the single largest litigant in cases pending before court, will have a veto power [as explained above] in appointment of Judges with the help of Law ministers and eminent people.
Myth 5: NJAC will reduce the number of cases backed up
â€śTo prove why the NJAC is necessary and why the collegium system should be disposed with, here are a few examples: - In a country where there is a backlog of 3.2 crore cases in the judiciary, one judge of the Supreme Court wrote only seven judgements in four years. Out of that two were concurring where he wrote only a few paragraphsâ€ť.
What these research experts are talking about here is â€śefficiencyâ€ť and â€śabilityâ€ť. Question is, did NJAC talk about these things anywhere or is it the wisdom of Swarajya team that extrapolates NJAC bill to such things based upon own whims? NJACâ€™s proposal was limited to changing the set of people appointing Judges by adding some representatives from legislature and not the criteria by which these Judges would have been appointed. How does it make a difference in the capability of Judges if 3 people coming from outside also participate in selection of Judges as long as there is no structured process of assessing their abilities to qualify for the process? From what I know, steps that any sane mind could take to address the issue of pending cases could be:- a clear, transparent system that evaluates all potential candidates on fixed parameters on a scale of 1 to 10. NJAC doesnâ€™t even tangentially touch upon these things. As far as efficiency is concerned, what is needed is opening more courts, increasing the strength of Judges in courts, digitizing processes etc. These could have been way forward for courts to achieve quality in judgments and also efficiency.
Myth 6: NJAC is the will of people
Yet another myth is that it is the will of the people. Read what the learned editor writes here - â€śSC verdict on NJAC snubs parliament, peopleâ€™s will but picture abhi baaki haiâ€ť. This bill was passed by Parliament in August 2014 and it had to be ratified by a minimum of 16 states before being sent to President for assent. Guess what, it didnâ€™t take more than 4 months for politicians of both houses of as many as 20 states to ratify this bill before final assent by the President in Dec 2014. How cute is it that columnists and media doyens didnâ€™t sniff anything fishy here seeing such unseen, unheard conformity among politicians across political parties from all over India? So, if letâ€™s say, a bill is passed tomorrow saying that all politicians will be immune to any kind of judicial proceedings and it is ratified by 20 state assemblies, will it be called as the will of the people? This is not the will of the nation but will of all corrupt people who aspire to usurp judiciary.
We must congratulate Supreme Court to reject the aspirations of government which is itself a litigant in more more than 70% of 3.2 crore pending cases. Had Supreme Court not struck down NJAC, government would have usurped judiciary. It feels great to see a strong structural foundation laid by torch bearers of our constitution that empowers judiciary to strike down its sinister agendas.
We must also warn people to at least develop a nose that can sniff what is cooking in any issue that is ratified by politicians from all political parties across India.
Many have argued to have faith in a nationalist government that echoed the principles of transparency and accountability and give NJAC a chance. But, as Joe Rogan said-â€śFaith itself is a horrible mechanism that stunts the growth of ideas. It also stunts the act of questioning, and it does this by pushing the idea that you have to have faithâ€”and that nothing has to be provenâ€ť.