As evident from Chief Justice RM Lodha’s Independence Day speech, the judiciary is struggling for its own “independence”, after the Parliament hastily passed the National Judicial Appointments Commission (NJAC) Bill, 2014 coupled with the 99th Constitutional Amendment, which is now just a step short of becoming law.
Clearly intending to subjugate the autonomy of the judiciary by bringing such Bills, Prime Minister Narendra Modi seems to surpass ex-PM Indira Gandhi when it comes to usurping as much power as possible treating judges as puppets. The new Government had just recently given a glimpse of such an intention when it unilaterally segregated Gopal Subramanium’s candidature for Supreme Court judgeship despite the collegiums recommending his name. And then came this Bill, which would legitimise such actions in future. Needless to say, India lost a prospective judge par excellence in Subramanium, and no clear reasons were cited for his segregation by the Government, which is now preaching sermons on transparency through this Bill!
Justice HR Khanna had told his sister before delivering his judgment in the Habeas Corpus case, “I have prepared my judgment, which is going to cost me the Chief Justiceship of India.” He resigned the day he was superseded for the post of CJI by Indira Gandhi. What Gandhi did to Khanna then, Modi through this commission can easily do to any judge, if this disastrous Bill is enacted.
Not just Subramanium and Khanna, many such instances can be cited where the chances of judgeship of some brilliant people have been guillotined by the executive. After tolerating several such instances of abuse of power by the executive, the judiciary was compelled to introduce the collegium system in the Second and Third Judges cases to secure to itself the authority to appoint judges.
Article 50 of the Constitution makes it obligatory for the State to take steps to separate the judiciary from the executive in the public services. This implies that an element of insulation of the judiciary from the mighty clutches of the executive is absolutely indispensable to ensure its independent functioning.
Let us now examines how such Bills undermine the independence of the judiciary.
First, a Law Minister introduced the Bill which provides for he himself (a Law Minster) to be one of the judges to choose a judge. So, if he appoints three-four judges today and loses his Ministership tomorrow, when another party assumes power, he might resume practice and appear before one of those very judges he chose to appoint. Further, he himself and his brethren are in no way immune to the jurisdiction of the SC and can be tried like any other citizen. ‘No one can be a judge in his own cause’ is a basic principle of natural justice which would be violated in both the above instances, if this Bill is enacted.
Secondly, the provision for appointing two ‘eminent persons’ as Members of the Commission, one of whom would belong to SCs, STs, OBCs, Minorities or Women, is totally repugnant to the spirit of judicial independence. Talking of persons of eminence, let us not forget the recent episode of ‘eminent persons’ like Sachin Tendulkar and Rekha who have shown their ‘eminence’ by their prolonged absence in the Rajya Sabha. Imagine if such persons show such kind of ‘eminence’ in judging and appointing judges, which requires responsibility of the highest order, far more than that of a nominated Rajya Sabha member!
Thirdly, how will such ‘eminent persons’ judge the ‘ability’ and ‘merit’ of a judge if they aren’t lawyers or jurists? Merit of a judge can be judged from the judgments he delivers. Suppose a judge convicts an accused on the basis of a plea which the victim is stopped from pleading and on the basis of circumstantial evidence. Imagine if an eminent social activist appointed as a member considers the case of that judge, he will be bound to be well-versed with the intricacies of the Evidence Act to be able to adjudge the ‘merit’ of that judge. Unless he does that, technically speaking, it will be like a matriculate judging and evaluating PhD candidates!
Fourthly, if any two among the Law Minister and the eminent persons choose to exercise their veto, the other three judicial members will be unable to select a deserving candidate. Such unfettered power of veto to non-judicial members is certainly prone to be misused.
Usually, in most cases, like writs, etc., the relief sought is all against the government. But if such Bills become law, a judge would think twice before deciding against the government or any social activist or any other eminent person because if he does so, the ruling or opposition party or the head of an NGO can settle scores against that judge by exercising veto against him. So, a judge has to please all of above by his judgments, unless he’s prepared to sacrifice his judgeship like Khanna or Subramanium.
No wonder, both the Bills of such national importance were passed in a hush-hush affair by MPs of all parties in no time with absolute majority. The Congress could not protest because the idea of establishing such a commission was mooted by itself, and the rest of the Opposition was weaker still. Politicians regardless of their parties have scores to settle against the judiciary, for it is the judiciary alone which can convict them for all the black money they launder during elections and in various criminal cases pending against many of them. Forget the general public, the fact that even members of the Bar and Bench were not adequately consulted by the government or the Standing Committee of MPs, barring a few, was no surprise either.
Establishing such kind of a commission for remedying the defects of the collegium system is like using outside dirt to clean the dirt already existing inside one’s house, which will end up dirtying the house even further!
Many are supporters of creation of the NJAC because of the popular argument that nowhere else do judges appoint judges, and it is usually the executive which appoints judges, like in the US and the UK. Well, are we Indians just a bunch of copycats? Should we have an NJAC just because other countries have it? Don’t we have a collective wisdom of our own to act upon and set up a system on our own? Such commissions have barely been a success in other countries.
It can be suggested out of common prudence that for judging a judge, one has to be either a judge or someone better than a judge. Hence, if such a commission has to be established, barring the three sitting judges as ex-officio members, it must contain persons of equal stature like retired judges and legal luminaries (who may or may not be from the Bar) who in the opinion of the President are eminent or ‘distinguished’ jurists and otherwise eligible for SC judgeship as provided under Article 124 (3) (c) of the Constitution, and no one else as members, to ensure judicial independence.
Even if both the Bills are ratified by the State legislatures, the outcome of the PILs challenging their Constitutional validity may put the legislature and judiciary at loggerheads in continuance to their already existing age-old tussle.
(The writer is an advocate in the Orissa High Court, Cuttack)
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