Consentia on Business Laws and Constitutional Laws

Critically Analyzing the National Judicial Appointments Commission Act, 2014: Replacing bad with the worst

Introduction:-

The long settled position of procedure of appointment of Judges of Higher Judiciary by the Collegium system has been modified by Exhibit P1 The National Judicial Appointments Commission Act, 2014 (Act No. 40 of 2014). As the Preamble of National Judicial Appointments Commission Act suggests, it has been introduced to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.

The Act seeks to scrap the twenty years old collegium system. It is believed that though this system ensured independence of judiciary with no political interference but it has been criticd for being secretive with no prospective criteria mentioned for the appointment and removal of judges with lobbying and favoritism.  But, whether the new enactment fills the loop holes that were there in collegiums system or it creates some more loop holes is the issue to be considered. Well, let us analyze the NJAC Act and the 99th Amendment to the Constitution of India to find this out.

Analysis of the Act and the Constitutional Amendment:-

Sec.5 (1) of the Act states that:

Sec. 5(1) The Commission shall recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office: Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting.

If only the senior most judge has to be appointed as the CJI, then, how the new Act can be differentiated from the collegium system through which as well the senior-most judge of the Supreme Court was being appointed as CJI(Sec. 6(1) provides the same for High court judges and CJ). However, once again, no criteria has been laid down which will anyhow prefer to appoint meritorious judge instead of just the senior-most judge. If a selection is based on the merit and suitability, seniority may have to be given due weightage but it would only be one of the several factors affecting assessment of merit as comparative experience in service should be.[1] Whereas while appointing the judge at the highest post, only seniority will be given weight and merit will be outweighed totally. It may be worthy to note that even in well advanced countries like U.S.A. or UK, in practice, regional, social and racial representations are kept in view in making appointments of judges to superior judiciary, without of course sacrificing merit.[2] . The Chief Justice of India shall be appointed on the basis of “selection by merit” and “seniority alone” rule shall not be applicable.[3] There can be no doubt that appointment to the Supreme Court is by way of selection on merit and “seniority alone” has never been and cannot be the basis. We reiterate that the merit shall always be the out-weighing factor in the selection of Judges to the Supreme Court of India.[4] It was clearly quoted in SC Advocates on Record Association v. UOI [5] as “Reversing S.P. Gupta’s Judgment[6] we have held that primacy, in the matter of appointment of Judges to the superior Courts, vests with the Judiciary. This being the present state of law, it is the Chief Justice of India and his consultees in the superior Judiciary who are to select in consultation with the executive – the next Chief Justice of India. They have to lay down the standards of objectivity and rules of appraisal. We can safely bid good-bye to the “seniority alone” rule and hold that the selection of the Chief Justice of India be made on the basis of merit alone.”[7] A Constitution Bench of Supreme Court in Sant Ram Sharma v. State of Rajasthan[8] observed, (at 122 and 123) as under:

It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to takes any account of personal merit. Seniority alone or selection on merit is the question. The seniority rule stagnates the system due to lack of enterprise: merit on the other hand does justice to the selected and brings vigour to the system.

Also, it is pertinent to note that the member whose name is being considered for the appointment shall not participate in the process but then, who will participate at his place. The Act is totally silent about it. We now as responsible citizens need to think if our democratic system can approve of such legislation which has so many ways of escaping from what it actually states.

Subsection (2) of Sec. 5 states that:

Sec. 5(2): The Commission shall, on the basis of ability, merit and any other criteria of suitability as may be specified by regulations, recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed as such under clause (3) of Article 124 of the Constitution: Provided that while making recommendation for appointment of a High Court Judge, apart from seniority, the ability and merit of such Judge shall be considered: Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.

“Any other criteria” mentioned in the subsection attributes to the vagueness in the procedure prescribed by the NJAC Act. The U.S. Supreme Court, in City of Akron v. Akron Center for Reproductive Health,[9] struck down a provision of Akron’s abortion law which required that physicians dispose of fetal remains in a “humane and sanitary manner”. “Humane” was judged to be unconstitutionally vague as a “definition of conduct subject to criminal prosecution”; the physician could not be certain whether or not his conduct was legal. Similarly, ‘any other criteria’ is also unconstitutionally vague as nobody knows what criteria the commission might lay down for appointments of judges. While Article 124(3) of the Constitution prescribes the minimum requirement of a person to be eligible to be appointed as a Supreme Court judge, Sec.5(2) of the NJAC Act, 2014 can now prescribe “any other criteria of suitability as may be prescribed by the regulations.” Similarly, additional criteria not mentioned in the Constitution can be added for High Court judges. It has created an absurd and confusing situation where the eligibility of Supreme Court and High Court judges will be determined not just by the Constitution but by “regulations” of the Commission.

The word ‘merit’ has been inserted without ascertaining what actually merit is and how each member of the commission will ascertain if particular candidate is meritorious or not(same provided for appointments in High Court in Sec.6(1)). No doubt, the selection must be on the basis of merit but, that merit must be at least defined. If it is not, each member will have vastly different opinions about the merits of a judge to be promoted or appointed and the same happens in collegium system when each judge develops his/her own criteria as to the merit of a judge. Then, what difference this piece of paper passed by Parliament is making to the existing system. Rather, in collegium system, judiciary was much safer from the political taints and executive interference and more than anything, it was independent which the doctrine of basic structure demands.[10] As quoted by Justice S.H. Kapadia, “Merit is not a fixed absolute concept. Merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another. The difficulty is that there is no natural order of “merit” independent of our value system. The content of merit is context specific. It derives its meaning from particular conditions and purposes.”[11] Therefore, the merit in the context of judicial appointments too is not specific and in order to make effective appointments, it is more than necessary to specify and define as to what would “merit” mean and consist of while appointing judges to High courts and Supreme Court. Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be a relevant factor.[12] For the purpose of judging the merit, thus, past performance was a relevant factor. There was no reason as to why the same had been kept out of the consideration by the selection committee.[13]

And then, how can we not talk about another great example of chicanery by the Parliament that is, Clause (3) of Sec. 5:

Sec. 5(3) The Commission may, by regulations, specify such other procedure and conditions for selection and appointment of a Judge of the Supreme Court as it may consider necessary.

The conditions for selection and appointment can be changed by the commission itself anytime it wants to for appointing the judges of Apex Court by its own regulation. When? How? Why? Who will supervise if the regulation changed is politically motivated or a necessity? What if they start making appointments on the basis of caste or religion in the wake of this particular section? And what not! If the Commission itself can at any time by regulation specify other procedures and conditions for the process, then what purpose is the Act solving? Isn’t it vigorously shaking the half uprooted tree of collegium system? Isn’t it equal to removing the life support system of a person already in the vegetative state?

Veto provided to 2 members under Sec.5 (5) and 6(2)[14] speaks volume of the fact that the ‘Primacy’ of the Opinion of Chief Justice of India is sought to be done away with by passing the National Judicial Appointments Commission Act of 2014, by giving ‘Veto’ powers to any two members of the National Judicial Appointments Committee (being either the Eminent Person or the Law Minister) thereby overruling the recommendation of the Chief Justice of India and other two Senior Most Judges of Hon’ble Supreme Court of India. Such provision is contrary to the observation of this Hon’ble Court in decision reported as[15], wherein the Bench of 9 Judges of this Hon’ble Court (by Majority of 5:4) has observed that (Para 432):- “The question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered to achieve the Constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of Judiciary, and thereby, to preserve democracy. A fortiori any construction of the Constitutional provisions which conflicts with this Constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and therefore, an alien concept.” If any two members express disagreement on a candidate, the appointment cannot go through. Thus, in any selection, the unanimity of the three judicial members will not count if they cannot carry two out of the remaining three with them. It will inevitably lead to an impasse, and since the country desperately needs judges, compromises will be made to secure consensus, leading to the entry of compromised candidates.

The question as to who should really appoint judges has never been satisfactorily answered with logical reasons that too, in compliance with law without violating any single provision of the Constitution. In courts too if it is discussed, the position is one sided- either judiciary or executive. This new Act too fails to resolves this issue. It is complicating the situation even more by replacing the settled position of collegium that the judges would appoint the fellow judges. I do not seek to favor collegiums system. Undoubtedly, it is faulty. But, NJAC too fails to resolve the issue.

Composition of Commission under 99th Amendment to the Constitution:-

The 99th Amendment to the Constitution provides for the composition of the Commission i.e. a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio; (c) the Union Minister in charge of Law and Justice––Member, ex officio; (d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members. Who will be those eminent persons?- not defined. Well, if past experience is anything to go by, these could be lawyers or former judges. But, again both the amendment and the Act are silent upon this. The proponents of Commission proudly assert that due to the presence of leader of opposition, it would mean that it is not just government who is taking part and Leader of Oppositon will be there to refute if government does something wrong. On the other hand, History witnesses something which is totally opposite. In 2010, the Government of India appointed Mr. P J Thomas as Chairman of the Central Vigilance Commission despite opposition from then leader of the opposition (as is the procedure prescribed[16]) in the Lok Sabha, Ms Sushma Swaraj on the ground that Mr. Thomas was charge sheeted in the Palmolein old case. Thereafter, on 3 March 2011, the Supreme Court of India in the case of Centre for PIL & Anr. v. Union of India & Anr.[17]  declared appointment of Mr. Thomas as “non-est in law” and quashed his appointment. the Government of India  appointed Justice Cyriac Joseph on 27.05.2013 and Mr. Sarat Chandra Sinha on 08.04.2013 as members of the National Human Rights Commission despite then leaders of Opposition, Sushma Swaraj in the Lok Sabha and Arun Jaitley in Rajya Sabha, recording their dissent against their appointments.[18] Then, what is the guarantee that the government would pay heed to the opinion of LoP now when it has never paid earlier. The inclusion of LoP in Commission is another way to trick the public.

Also, since all political parties have been equally harmed by judiciary and Judicial Activism and reforms brought by the Supreme Court and High Courts in the country, the government and Leader of Opposition may collude to outvote the Chief Justice/Chairman. Every law, rule, regulation, policy and decision of the government has come into sharper legal and constitutional scrutiny. The way our investigating agencies like the CBI, IB etc. are being used, the govt. may collude with the Leader of Opposition for some compromises.

Another past experience from 1973 to 1975 can be referred to here and it would not be wrong to call this era as the blackest era in the history of Indian democracy. On 25th April 1973[19], Justice Ajit Nath Ray, the Judge who consistently gave verdicts in favor of Indira Gandhi led government was elevated to Chief Justice of India superseding 3 Supreme Court Judges- Manilal Shelat, AN Grover and K.S Hegde who were senior to him and all of whom had given verdicts against Government.[20]  On 23rd May 1975, the case of electoral malpractices against Indira Gandhi was concluded and the 258 page Judgment was pronounced on 12th June 1975 by Justice Jag Mohan Lal of Allahabad High Court. Justice Lal declared Indira Gandhi guilty of corrupt electoral practices and disqualified her from contesting elections for the next 6 years.[21]

 Following Allahabad High Court Judgment, she appealed to Supreme Court for stay on order till her prayer of reversal of order was heard. The Supreme Court stayed the order but asked her not to take part in parliamentary proceedings. Following this, within 13 days, she declared emergency and throttled the fundamental rights of people of India given by Constitution by bringing 42nd Amendment act that clearly made itself immune from any Supreme Court or High Courts’ fears. The Parliament then amended the electoral law and she was exonerated. During emergency, from 1975-1977, proposal for transfer of 56 High Court Judges were made and 16 of them were transferred because of unfavorable decisions given by them against Mrs Gandhi. Not only that, 8 new Judges leaning towards Mrs. Indira had been appointed to Supreme Court. Also, the power to transfer high court judges under the Constitution was meant to be used only in certain exigencies-never to penal the independent judges. During the 21 month long national emergency period, as many as 56 judges were transferred from their home high courts to high courts in other states as punishment for not falling in line with the policies of Indira Gandhi government.[22]

After 2 years of hardship of Indian people and it would not be wrong to call it dictatorship, elections were held. Janata Party came to power under Morarji Desai and the new Govt. helped restore back the power and Independence of Judiciary. In 1979, Janata Party govt fell and new elections were held and Indira Gandhi came back again.

In 1980, hearing the case of Minerva Mills[23], a private limited textile company that had been usurped by GOI by Industries Development Act, the Supreme Court once again re-emphasd on that Parliament cannot change the basic structure of constitution and it struck down several clauses added by Indira govt. during emergency time.

Let us critically think for a moment and deliberate if judicial independence will be good for our country or not? If yes, there is no place for NJAC (as presently enacted) in the system. If no, get ready to go back to the times of haunting era of emergency.

The state is by far the biggest litigant in India, and contributes a large part to the staggering backlog of civil suits – over 10 million at last count – clogging the courts. The extent of Government involvement in litigation was acknowledged by Prime Minister Manmohan Singh at a conference of Chief Ministers and Chief Justices in 2004.[24] We cannot in given the circumstances above even think to have “Executive” decide who will be the Judge who will listen to billion-dollar scams?

Now the government would appoint the judge in its own case which is nothing less than being a judge in your own case and thus, is definitely against the principle of natural justice- Nemo Judex in causa sua.

This is not it! The flimflam is not yet over. Clause(2) of the newly inserted Article 124A through Amendment states that No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission. The very purpose the NJAC Act wants to solve is fulfilling the vacancies and if it fails to do so, it can’t be questioned. The defect in the composition too can’t be questioned. What a mockery! It clearly means that the act of the Commission cannot be judicially reviewed. In landmark judgment of Minerva Mills v. UOI[25], it has been stated clearly vide para 367 “…judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub- version of the Constitution…” . In the same case it was stated, “The Constitution has, therefore, created an independent machinery for resolving the disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32[26] and 226[27] of the Constitution. Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on 9th December, 1948:

‘If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.’[28]It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution.”

“Judicial review is increasingly essential if we have an increasingly powerful executive. It is an irritant to the executive but it is a very important, fundamental control on the executive. And the fact that members of the executive know they are subject to judicial review helps ensure that they carry out their job properly”, Lord Neuberger said.[29] “It would be very unfortunate for legislation to cut back the opportunity for judicial review,” Lord Hope said.[30] In this case, How can The Constitutional Amendment which is ipso facto abrogating the basic structure of the Constitution be allowed to come into operation?

A state Supreme Court has authority to conduct a post-election review to determine whether a proposed constitutional amendment is constitutional or not,[31] and courts have exercised the authority to determine the validity of proposals, submissions, or ratifications of changes in organic law.[32] The question of the validity of the adoption of an amendment to the constitution is a judicial[33] and not a political question[34] which will be decided only by the courts.

The principle that judicial review is part of the basic structure has again and again been reiterated in Mohd. Arif @ Ashfaq and others v. Registrar, Supreme Court of India and others[35], Bhim Singh v. Union of India and others[36], State of West Bengal and Others v Committee  For Protection of Democratic Rights, West Bengal and Others[37], B. R. Kapur v State of Tamil Nadu and Another[38], L. Chandra Kumar v Union of India and Others[39], Sarwan Singh Lamba and Others v Union of India and Others.[40]

A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in cases of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government. British Dominions operating under written constitutions have had to face the task pretty much as we have, and they have solved it in similar ways. Like institutions have developed in other federal systems.[41]
The argument over the constitutionality of judicial review has long since been settled by history. The power and duty of the Supreme Court to declare statutes or executive actions unconstitutional in appropriate cases is part of the living Constitution. “The course of constitutional history,” Mr. Justice Frankfurter recently remarked, has cast responsibilities upon the Supreme Court which it would be “stultification” for it to evade.[42] The independence of judges in the administration of justice has been the pride of communities which aspire to be free.[43]

 Chief Justice Murray Gleeson has observed: ‘The independence and impartiality of the judiciary are not private rights of judges; they are rights of citizens’.[44]As former Chief Justice of Australia Brennan, J. has explained: ‘The judiciary, the least dangerous branch of government, has public confidence as its necessary but sufficient power base.’ It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people … have confidence in the exercise of the power of judgment’.[45] Where courts enjoy such confidence, this is the strongest protection against incursions into their independence. There is no debate to the fact that independence of judiciary is part of the basic structure of the Constitution but, does the new Act ensure this independence? – No, not at all.

Independence of judiciary has been held to be a basic feature of the Constitution in the cases of Shri Kumar Padma Prasad v. Union of India and others[46]Supreme Court Advocates-on-Record Association and another v. Union of India[47]Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by LRs[48],; All India Judges’ Assn. (III) v. Union of India[49], Jasbir Singh v. State of Punjab[50].

It undermines the independence because now, the judges will be pronouncing judgments for their appointers. Judges too are human being; they too have emotions and greed for power and emotions. Who would not want to get promoted and in lure of promotion, it is likely that judges will pronounce judgments in favour of the government. We are not in a position to change the human nature but, the system must be such that the judges do not get the chance to become partial. But, NJAC Act gives them the clear chance to do injustice. So, what is better?- a faulty and non transparent system which is not partial or a faulty and non transparent NJAC which is partial. It is upon the readers to decide as to which system has lesser loop holes and which can be changed for good more easily.

The commission is not just politically tainted but, it is nothing less than the government itself. Sec. 8 of the impugned Act is itself a clear evidence of it which states:

Sec. 8(1) The Central Government may, in consultation with the Commission, appoint such number of officers and other employees for the discharge of functions of the Commission under this Act.

(2) The terms and other conditions of service of officers and other employees of the Commission appointed under sub-section (1) shall be such as may be prescribed.

(3) The Convener of the Commission shall be the Secretary to the Government of India in the Department of Justice.

All the officers and employees of the Commission will act as the agents of the central government which is their appointee. To add on this, who and what will be the function of these mentioned ‘employees’ and ‘officers’ will be is not even talked about in the Act which means government has all the powers and is ready to rule the only saviors of general public. Not only it has this, but the convener of the Commission as well had to be (necessarily) the Secretary to the government of India in Department of Justice. Sub section (3) of Section 8 itself clarifies the will of Legislature and requires no explanation further.

The commission or say the government will not only control appointments but, the transfers of the High Court judges the regulations for which not of much surprise will be regulated by the Commission itself later on.[51] And again, all such regulations which the Commission has power to make under this Act have to be laid down before the Parliament.[52] This cure is more hazardous than malaise. If the secretariat or officers and servants of the JAC are treated as government departments, there are multiple ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.

The work which was to be done by judiciary has entirely been shifted to legislature and executive leaving behind judiciary with least rights and powers. The NJAC Act is clearly unconstitutional. \This Act is undemocratic as it has abrogated what was laid down by the Supreme Court in second and third judges case which are law of the land by virtue of Article 141[53] of the Constitution. The law declared by the Hon’ble Supreme Court is the law of the land. The Hon’ble Supreme Court has held that judge-made laws are part of the constitution.[54] Therefore the dictum laid down by the Hon’ble Supreme Court in Supreme Court Advocates on record Association and another v. Union of India[55] and In Re: Presidential Reference[56] have become part of the Constitution and reached finality in the issue of appointments of Judges in Higher Judiciary.

For the appointment of High Court judges, the NJAC Act, 2014 also requires the views of the Governor and Chief Minister to be given in writing and “as prescribed by the regulations.”[57] But the Act is silent as to what happens if the Governor or Chief Minister or both object. Also, the views of the Governor will be elicited but, again, those are not binding. Thus, those at the Centre, through the NJAC, will select the High Court Judges, despite their lack of familiarity with the institutions of High Courts and lack of State-level mechanism for an open system for assessment of individual merit. This nullifies the constitutionally guaranteed federal traits in the realm of judicial appointments.[58]

Comparing it with Collegium System:-

No doubt can be posed to the fact the collegium system has been non-transparent and non-accountable and this has been the sole reason why NJAC has been enacted as iterated by its profounders again and again. But, does the new enactment even peripherally touch upon the issue of accountability and transparency? The answer is clear No and a big No. Then, how does it justify being replaced with collegium system which was equally non transparent?

It doesn’t even remotely talk anything about “transparency” and “accountability”. Where is the clause that tells us about the “criteria” on which Judges will be evaluated? What will be the pay scale of these people? It is not wrong to admit that a judicial appointments in collegium system has been partial and alleged of nepotism and favoritisms. But again, how does NJAC provide a remedy to this problem? How do we know that the NJAC members will not appoint their own near and dear ones in Judiciary? Will they be given such declaration before appointments? Even after giving such declaration, what if NJAC finds that a bright candidate to be considered for the elevation happens to be the relative of 1 of 6 members? How many days in a year will NJAC work?

If a High Court Judge has given a decision against the government, then, is it even possible to think that the 2 members from govt. side (eminent person and a law minister) would ever let him get elevated to Supreme Court to cut off their nose to spite one’s own face. This simply violates the basic structure of Constitution that talks about Independence of Judiciary. The Drafting Committee had deliberately kept Executive away from appointment of Judges. The basic structure diagram is in accordance with the idea of founding members of our constitution and NJAC seeks to abrogate it.

Another defense being given is that everywhere in the world Executive appoints Judges and hence we should also handover this appointment of Executive. First of all, this argument itself is pointless and vague. Is it so that what works on “Android” works on “Windows” too? Is it that if something is applicable in one society will work in another society too with entirely different social political and cultural scenario? Secondly, it is not only stupidity to compare the two systems but, what is being propagated is a lie. In UK, neither Executive, nor Judiciary have any say in appointments. Instead, they have an excellent system that is “transparent” and “accountable” which includes the lay men too.

The proponents of the Act continuously defend its undemocratic ways by arguing that it is the will of the people because 2/3rd of the members of Parliament and more than half of the state legislatures have passed it under Article 368 of the Constitution. But, the main question is do the legislatures actually represent the will of the people? The legislature and the executive are often charactered as democratic – assuming that decision making in those branches reflects preferences of a majority of its citizens. Yet, an impressive wealth of economics and political science literature demonstrates that the politically accountable branches do not necessarily act in a way that reflects the majority views.[59] Political science and economics research, especially the public choice literature, has powerfully demonstrated that legislative action frequently does not reflect the sentiments of society’s majority for two reasons. First, individual legislators often do not vote in accord with the preferences of a majority of their constituents. Second, the nature of decision making by multiple-member bodies makes it unlikely that their decisions will accurately reflect the preferences of a majority of those represented.[60] And especially, in our country where we very well know the political situation of the country, how can one even dare to presume that legislature is representing the will of people. In this respect, locus classicus of Mohammad Ahmed  Khan v. Shah Bano Begum[61] will be the great example of Vote bank politics in our Country at its worst. In April 1985, the Supreme Court delivered a judgment on the maintenance a divorced Muslim woman would be entitled to receive from her former husband.[62] The Constitution bench in the case delivered a unanimous verdict. First, the court alluded to the religious neutrality of Section 125 of the CrPC. It stated that in any event, if there was a perceived conflict between S. 125 CrPC and Muslim Personal law, the CrPC would override the provisions of Muslim personal law.[63]Exploring the meaning of Mahr, the court rightly concluded that it was an amount that a wife was entitled to in consideration of marriage-it could not be construed as divorce payment.[64] This led to an outrage amongst Muslim conservatives and protests and counter-protests over the Shah Bano judgment persisted. Initially, Rajiv Gandhi led Congress party had won the parliamentary elections of 1984 by a sweeping majority, favored the judgment.[65] However, after suffering losses in state elections in some Muslim-dominated regions, the government changed its approach. It succumbed to vote-bank politics. There were calls among Muslim conservatives asking for Parliament to pass a law nullifying the Supreme Court judgment in Shah Bano case. Despite a spirited defense of the judgment by Muslim leader Arif Mohammed Khan,[66] the Rajiv Gandhi government enacted the Muslim Women ( Protection of Rights in Divorce) Act, 1986 (the MWA). Contrary to its name, the MWA undermined the far- reaching protection granted to Muslim women in Shah Bano judgment. It was more in the nature of a ‘dissolution of rights in divorce’ act rather than a ‘protection of rights in divorce’ act.[67] According to MWA, mahr and maintenance were to be paid to a divorced Muslim woman only during the three-month iddat. It effectively deprived Muslim women of the right to file a maintenance petition under S.125 CrPC.[68]What divorced women who were financially dependent on their husbands were expected to do after the expiry of iddat was anyone’s guess.[69] The legislative overruling of Shah Bano judgment was the start of an ugly brand of vote-bank politics in India.[70] We can easily make out if the Legislature here actually represented the will of the people, worked for the betterment of Nation or not. But, this is not where the story ends. Again, in 1994, the judiciary came as a savior to Muslim women. In Daniel Latifi v. UOI[71], the Supreme Court exercised greater restraint than in Shah Bano. It refused to strike down the MWA, yet protected the rights of divorced Muslim Women through an astitute of interpretative rules. Two and a half decades after the Shah Bano case, which gave relief to Muslim women, and the MWA, which deprived them of that relief, Indian Courts unshackled and expanded the rights of divorced Muslim women. Now, a divorced Muslim woman can file a petition either under CrPC (for recurring maintenance) or through the MWA (for lump sum settlement), seeking fair and reasonable provision for the rest of her life.[72] Thus, looking at the political scenario of the country so closely, the argument in favor of NJAC that it represents the will of the people as it has been enacted under Article 368 of the Constitution stands unintelligible and superficial on the face of it.

On reflection, perhaps it should not be so surprising that a formal, super majoritarian amendment process matters so little in a mature constitutional regime.[73] A supermajority might act, and adopt an amendment, even if society has not fundamentally changed. An amendment might represent a momentary high-water mark of popular sentiment on a question, or an effective effort by an interest group at the height of its power to secure its position.[74]

There is no clarity as to what happens if there is a deadlock? Is there any quorum? What are the provisions for removal of the members of the JAC when necessary? What if the veto power is misused to appoint someone undesirable?

      Solution and Conclusion:-

 It is recommended that merit should be given weight age as opposed to seniority. In pursuance to this, it seriously needs to be decided as to what merit will be as per the commission. It is beyond controversy that merit selection is the dominant method for judicial selection and the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. Besides the above, the hallmarks of the most important personal qualifications required are moral vigor, ethical firmness and imperviousness to corrupting or venal influences, humility and lack of affiliation, judicial temperament, zeal and capacity to work.[75] In Texas Law Review (Volume 44) 1966 at page no. 1068 and 1071, the following passages are found emphasizing the desirable qualities of the Judges: It is easy to understand why the active judges deem noble inner qualities highly desirable. It is also natural that they should give the highest ratings to good repute, “Good name in man or woman… is the immediate jewel” of their souls, Shakespeare said, and judges share with you and me a taste for such treasures.[76]

No doubt the term “merit” is not capable of easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the university, his character, integrity, devotion to duty and the manner in which he discharges his judicial functions. Allied to this may be various other matters, or factors, such as his punctuality in work, the quality and turn out of the work done by him and the manner of his dealings with his superiors and subordinate officers and the general public, his rank in the service and annual confidential report. All these and other factors may have to be taken into account in assessing the merit. Merit consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic and infinite capacity for hard work and also calls for a sense of social commitment and dedication to the cause of the poor vide  Pradeep Jain v. UOI, P.N. Bhagwati[77]. Since the NJAC shall acts as search committee, selection committee, recommendatory body for the appointments of the judges in the higher judiciary, therefore, it is desirable that NJAC should be a broad based body with odd numbers so that the aspired results are achieved with majority decision. In our opinion, there should be representation from the Bar, State Legislatures, Both the Houses of Parliament, civil society, eminent jurists, and women so that there is healthy participatory opinion building regarding the persons to be selected and recommended for appointments to the higher judiciary to adorning the Supreme Court and High Courts. The broader based NJAC shall also strengthen the fabric of federalism which has to be on the genesis of mutual reciprocal friendly relations between centre and state. The constitutional amendments stultify the process of judicial review, and assuaging or muffling judicial review is unequivocally against the principle basic structure. the only crucial factor in federalism is strong judiciary and judicial independence is assurance of a merit selection and a high standard of judicial appointment where none shall have the occasion to wrestle to complain that “there are few judges whom any sane man would like to go before and there are fewer in whose tribunal it is not almost a misfortune to appear.”

It is more than important to ensure the transparency in collegiums system or by making various improvements in the present legislation such as by making NJAC a full time working committee for instance, a “Judicial Audit Committee” like SEBI is for corporate sector and not an appointment committee. SEBI does not decide the CEO and MD of Infosys, Wipro, TCS, etc. Does it not ensure transparency by maintaining independence of these MNCs? Just like that. Let NJAC be completely independent body acting neither under the influence of executive nor under Judiciary with streamlined process to prepare yearly report cards of Judges.  NJAC audit committee can be to put up all its findings on yearly basis on a portal and let Judiciary decide, based upon those report cards, who will be the Judge. The NJAC can, then, upon review of profiles and report cards of candidates by Supreme Court Judges and President facilitate their interview and selection procedure. However, the present amendment and the Act in present is not the solution to the existing problem of the collegium system as its own defects are worse than the actual defects themselves. It would not be wrong to say that legislature has replaced bad with the worst! If NJAC Act in its present form continues to operate, it would cost democracy at least an arm and a leg if anyhow, some part of it is saved. The situation is nothing less than choosing between a rock and hard place but, every cloud has a silver lining. Let’s be optimistic, the difficult times like these will definitely lead us to better days.

[1] K.K. Parmar v. H.C. of Gujarat, (2006) 5 SCC 789, Para 28

[2] SC Advocates on Record Assn. v. UOI,   (1993) 4 SCC 441, Para 316

[3] Ibid, Para 7

[4] Id, Para 504

[5] Id

[6] AIR 1982 SC 149

[7] Ibid, Para 501

[8] AIR 1967 SC 1910

[9] 462 U.S. 416 (1983)

[10]Keshwananda Bharti v. State of Kerala, (1973) 4 SCC 225

[11]M.Nagaraj v. UOI, (2006) 8 SCC 212

[12]High Court of Gujarat (Recruitment and conditions of Service of Staff) Rules, 1992- R. 47(2)(a), Para 27

[13]Supra 2, Para 28

[14] Sec. 6(2) The Commission shall seek nomination from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of  that High Court

[15] Supra 3

[16] Appointment of Central Vigilance Commissioner and Vigilance Commissioners.-

(1) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal: Provided that every appointment under this sub- section shall be made after obtaining the recommendation of a Committee consisting of–

(a) the Prime Minister — Chairperson;

(b) the Minister of Home Affairs — Member;

(c) the Leader of the Opposition in the House of the People –Member

[17] Writ Petition (C) No. 348 of 2010

[18]Manoj Mitta,  http://timesofindia.indiatimes.com/india/Two-NHRC-appointments-in-2013-violated-SC-norms/articleshow/39016055.cms last visited on 27th March, 2015

[19] http://supremecourtofindia.nic.in/judges/rcji/14anray.htm last visited on 10th April, 2015

[20] V. Venkatesan, http://lawandotherthings.blogspot.in/2011/01/obituary-former-chief-justice-of-india.html last visited on 10th April, 2015; http://www.sundaytimes.lk/100221/International/int_01.html last visited on 10th April, 2015

[21] Indira Gandhi v. Raj Narain, 1975 SCR (3) 333

[22] Arvind Datar,  Commentary on the Constituion of India (New Delhi: LexisNexis Butterworths Wadhwa Nagpur, 2007)

[23] AIR 1980 SC 1789

[24] http://indiatogether.org/litigant-government; A good number of these adjournments are sought and granted in matters which involve Governments as litigants, who account for 2.1 crore pending cases in various courts in India, which is approximately 70% of all pending cases in the country; http://centreright.in/2013/12/agenda2014-judicial-reforms/#.VQjrfI7F-mp last visited on 5th March,2015

[25] Supra 23

[26] Art. 32 Remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

[27] Art. 226 Power of High Courts to issue certain writs(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

[28] CAD debates, Vol. VII, page 953

[29] http://www.theguardian.com/law/2013/feb/13/judicial-review-judges-supreme-court last visited on 25th March, 2015

[30] Ibid

[31] State ex rel. Clark v. State Canvassing Bd., 119 N.M. 12, 888 P. 2d 458 (1995)

[32] Stovall v. Gartrell, 332 S.W.2d 256

[33] Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941)

[34] ibid

[35] (2014) 9 SCC 737

[36] (2010) 5 SCC 538

[37]  (2001) 2 CALLT 526 HC

[38] [2010] 2 S.C.R. 979

[39] 1997 (1) SCJ 552

[40] [1995] Supp1 S.C.R. 427

[41]Eugene V. Rostow, ‘The Democratic Character of Judicial Review’, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3158&context=fss_papers last visited on 10th March, 2015

[42] Rochin v. California, 342 U.S. 165, 173 (1952)

[43]  Supra 10

[44] Chief Justice Murray Gleeson, ‘Public Confidence in the Judiciary’ (Paper presented at the Sixth Annual Colloquium of the Judicial Conference of Australia, Launceston, 26-28 April 2002) <http://www.hcourt.gov.au/speeches/cj/cj_jca.htm&gt; at 3 April 2003 (emphasis added) last visited on 26th March, 2015

[45] Ibid

[46] AIR 1992 SC 1213, para 37

[47] AIR 1994 SC 268

[48] AIR 1999 SC 3265

[49] (2002) 4 SCC 247

[50] (2006) 8 SCC 294

[51] Sec. 9 The Commission shall recommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such transfer.

[52] Sec. 13 Every rule and regulation made under this Act  shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session,  for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have  effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

[53] Article 141. Law declared by Supreme Court to be binding on all the Courts.

[54] N.Kannadasan vs. Ajayghosh,  2009 (7) SCC 1

[55] Supra 3

[56] 1998 (7) SCC 739

[57] Sec. 7 The Commission shall elicit in writing the views of the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations

[58] Kaleeswaram Raj, Federalism in judicial appointments, The Hindu, (Nov. 2, 2014), http://www.thehindu.com/opinion/op-ed/federalism-in-judicial-appointments/article6416552.ece last visited on 23 March, 2015

[59]Harvard Law Review, Vol. 103,1989-1990(pages 1-9840), Page 77

[60] Ibid page 78

[61] AIR 1985 SC 945

[62] 10 Judgments that Changed India, Zia Mody, page 49

[63] Ibid, page 54,55

[64] Id

[65] Reddy, ‘What Would your Founding fathers Think’, page 405

[66] Bipin Chandra, Mridula Mukherjee, and Aditya Mukherjee, India After independence (New Delhi: Penguin Books, 2000), page 285

[67] 10 Judgments that Changed India, Zia Mody, page 60

[68] Madhavi Sunder, ‘Piercing the Veil’, Yale law Journal, Vol. 112(2003):page 1399

[69] 10 Judgments that Changed India, Zia Mody, page 61

[70] Ibid

[71] (2001) 7 SCC 740

[72] 10 Judgments that Changed India, Zia Mody, page 65

[73] Harvard Law review, Vol. 114 2001 Part 2, Page 1462

[74] Ibid page 1463

[75] Supra 3

[76] See Law Commission Fourteenth Report, Page 70, para 9

[77] AIR 1984 SC 1420

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s