Is the criticism of the Supreme Court's decision to strike down the NJAC warranted?

A few who are in disagreement with the judgment have stretched their arguments beyond reason, and are attacking the Court in uncharitable and less-than-democratic terms.
Is the criticism of the Supreme Court's decision to strike down the NJAC warranted?
Is the criticism of the Supreme Court's decision to strike down the NJAC warranted?

On October 16, a five-judge bench of the Supreme Court in a 4-1 majority struck down as unconstitutional the 99thConstitution Amendment Act, which would have paved the way for the establishment of a National Judicial Appointments Commission (NJAC). The landmark judgment is being widely debated. There is praise from some quarters but there is also a lot of criticism, especially from the government. Most of the criticism has been at the level of politicians versus judges. A few who are in disagreement with the judgment have stretched their arguments beyond reason, and are attacking the Court in uncharitable and less-than-democratic terms. This is both distressing and perilous.  

Let us first look at the manner in which the reactions started coming. The BJP ministers and spokespersons were initially very mild in expressing their opposition to the judgement. The Union minister for Law and Justice initially, over an hour after the judgment was delivered, said that he was “really surprised with the verdict.” He would go through the judgment, talk to his senior colleagues and then decide, he had said. The Telecom Minister also spoke in a similar tone. When asked by a correspondent of ANI if the judgment was a setback to the legislature, Mr Ravi Shankar Prasad replied that he did not see it as a confrontation between the legislature and the judiciary.

By 2 PM, Finance Minister Mr Arun Jaitley called for a meeting of the BJP spokespersons. We are not privy to what transpired but one can be sure by the responses that we later witnessed that the party had decided to attack the judiciary. The same Telecom Minister changed his view; he told the press in the evening: “I regret to say that Parliament’s sovereignty has received a setback today.” Since the Court is “going to hear the so called infirmities and the need for improvement in the collegium system from 3rd November…there is an acknowledgment by the judiciary itself that collegium system needs improvement,” Mr Prasad said.

Two days later it was the Finance Minister himself who came out with harsh words against the judiciary. In his Facebook page, he wrote that the “key to the judgment” was “political bashing.” Taking a swipe, he said that the “Indian democracy cannot be a tyranny of the unelected.” Leaving behind the fact that the Minister himself had lost the 2014 general elections in Amritsar and got into Parliament through the Rajya Sabha route where “elections” are hardly that in the true sense of the word, it was highly unfortunate for a minister and a lawyer of his stature to use such words. Does he mean to say that the decisions of the Judges are of no, or less, value because they are not elected members? And by “tyranny” what does he mean? Does the Supreme Court’s striking down of an act that was passed by Parliament, notwithstanding the majority or extent of support it carried, constitute tyranny? Did the politician in him so badly dwarf the judicial mind which he possesses that he forgot that the Constitution provides for a judicial review? Or was he unwittingly making public his inner desire to amend the Constitution and repeal judicial review altogether so that Parliamentarians’ “sovereignty” can be untouched? And by saying that “it was people like me – the politicians, who fought out and went to prison” and saved democracy, does the minister mean to say that the Judges too should go to prison in order to qualify to become saviours of democracy?

While attacking the Judiciary in such voices, the likes of Mr Jaitley who hold high posts should remember that if any institution of the State still commands some respect and faith it is the Judiciary, more so the higher judiciary.  

Dr Jayaprakash Narayana of the Lok Satta party in an interview to Swarajya magazine opined that it was an “absurd proposition” to say that if “the representatives of Parliament or the government are part of the process of selection (of judges), it vitiates the selection.” The Supreme Court is not against representatives of the Parliament having a say in the process of selection, but is only against political interference to the extent that judicial independence will be compromised. In the Collegium system, the names of the candidates chosen by five senior-most judges of the apex court is sent to the President (read Cabinet) for assent. The representatives of Parliament (the Cabinet) have the power to send back such names if found inappropriate (though only once), and this was a system evolved by the Judiciary, not the Parliament!  

Those who criticize the judicial appointment system by saying that judges appoint judges (“permanent priesthood” is how Dr Jayaprakash Narayana put it in his above mentioned interview, “self-procreation” said Dr Abhishek Manu Singhvi in his article in the Times of India) should also add that there exists a provision wherein the candidates to be appointed as judges selected by the judges can be regulated by the Cabinet. The case of Mr Gopal Subramanium being prevented from becoming a Judge of the Supreme Court is a recent instance; it also showed how the Collegium was not sufficiently insulated from political interference (read excesses). One may say to counter this argument that that the Cabinet’s check in this regard is insufficient as the name(s) suggested by the Collegium can be sent back for reconsideration only once, and that if the Collegium sends the same name(s) again the President will have to appoint the said person(s). But this is the same even in the manner how bills are passed in Parliament. The President can send back to the Parliament for reconsideration a Bill only once and if the same is passed in the same form again, the President is bound by law to give his assent to it. Let us for a moment hypothetically think that there is a body that makes law which is above Parliament. If that body were to amend the Constitution to the effect that a Bill once sent back by the President to the Parliament for reconsideration shall not be accepted unless changes were made, would the Parliamentarians have agreed?  

Dr Jayaprakash Narayana said that judges appointing themselves was necessary to maintain independence wass an “absurd logic” because then by extending the same logic even Election Commission, Public Service Commissions, the CAG, etc. would have to appoint themselves. The comparison, I say with due respect, is incorrect. The bodies mentioned by Dr Narayana are not judicial bodies and thus are not, as is the basic structure, required to be separated from the executive and legislature. These bodies get the independence they require from the Constitution itself; removal procedure of an Election Commissioner is same as that followed for a Judge of the Supreme Court, there is security of tenure for members in these bodies, their salaries cannot be changed to their disadvantage, etc. Also, attempts as blatant as in the case of the Judiciary were not made to appoint “suitable,” “committed,” or “ideologically aligned” persons to these bodies. Thus there was no need to change the appointment procedure in these bodies as prescribed in the Constitution. There were serious attempts made by governments to make the judiciary weak and pliable and that is why the system of appointment had to be changed and we got a Collegium system, which none now say is perfect. The Supreme Court itself has said that the system needs to be improved, and that is precisely why they have called stakeholders for discussions on November 3. And if similar attempts are made to make constitutional bodies weak and pliable, the Supreme Court would, as it ought to, set in motion a debate and give suitable directions to the government to amend the appointment procedures.     

In the NJAC as it was passed, there were, at numerical parity with the judicial members, three non-judicial members, of which two would be “eminent persons” who were not even defined properly in the Act, and with a veto power of two. The same veto of two, but against five, existed in the Collegium too whereby a name could not be sent for assent to the President if two of the five Collegium members opposed. Thus, it is not veto per se that the Supreme Court has a problem but the veto that could be exercised by two undefined “eminent persons.”

The NJAC in the form it was passed would have done no better than the Collegium. Lack of transparency was the biggest problem in the Collegium system and where in the Act was a proviso which would have made the procedure transparent? Did the government feel that the presence of the Law Minister and two undefined “eminent persons” would bring transparency? The Act did not mention any new criteria or desirable qualification that would have to be looked at by the selectors. Instead of striking down the Act completely, Dr Singhvi feels that “the judiciary should have given a fair chance” to the NJAC “at least for a reasonable time.” Why should such an Act need a fair chance? It would only have led to another long discussion bringing further disrepute to the Judiciary for a flawed selection process. This was something that the Judiciary least wanted. Its invitation to the stakeholders for offering suggestions to rectify the errors is an open admission by the top court of the country that things are not in good shape, and this must be seen positively. Those shouting “judges appoint judges” must take solace in the fact that the judges are ready for reform.

Siddharth Mohan Nair is a student of Dr Ambedkar Government Law College, Chennai.

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