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Issue Debate #18 Would NJAC have made Appointments more merit based?

edited October 2015 in Issue Debates
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Trace the evolution of appointment process to higher judiciary. Would a more representative body like the NJAC may have made the appointment process transparent and merit based? Does the striking down of the Act amount to tyranny of the unelected? Discuss



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  • edited October 2015
    Introduction

    * Supreme Court striking down the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 by a majority of 4:1
    * Judges of the Supreme Court are appointed under Article 124 of the Constitution.
    * It is important to bear in mind that any appointment even by the Executive (as it stood prior to introduction of the collegium system) was an appointment made by the President i.e. it was an appointment by ‘the Executive after consultation with the Chief Justice of the Supreme Court or the High Courts’. Similarly, an appointment of a Judge of the High Court was again to be undertaken by the President in consultation with the Chief Justice of India and the Governor of the respective State.

    History

    * The first judgment in S.P. Gupta’s case (1981) was really in the context of ‘concurrence’ as being synonymous with the term ‘consultation’. It was believed thereafter that the Government could well rely upon ‘consultation’ as a formality, i.e. the Executive having the final say in the matter of appointment of Judges. This was sought to be corrected by a 9-Judge Bench in the Second Judges’ case (1993) which overruled the judgment in S.P. Gupta’s case. However, in order to ensure that the opinion of the Chief Justice of India carried overwhelming weight, the Supreme Court necessarily had to hold that the opinion of the Chief Justice of India was no longer the opinion of the individual Chief Justice but, in fact, was the opinion of the judiciary in a collegiate sense. This should necessarily weigh with the Executive; which could at best return the recommendation for reconsideration. But, thereafter, the opinion of the Chief Justice would carry weight, which meant that the recommendation of the collegium was final.

    Why its a good decision -

    * Indian Constitution, unlike the Constitutions of United States of America and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear. While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary through the process of judicial review.
    * The Ninety-Ninth Amendment Act not only did away with the collegium or the opinion of the Chief Justice having overwhelming weight, but it also made the Head of the Executive who also was the Head of the Legislative party as well as the Leader of the Opposition as two important persons in the selection of ‘selectors’ of Judges. Indeed, such an arrangement would mean a convergence of the Executive, the Legislature and the Judiciary which is completely forbidden under the Constitution because the Constitution does imply and can survive only if there is a separation of powers.
    * ours is perhaps the only country where the government is the biggest litigant before the courts.
    * We are one of the very few countries where actions of the political executive in diverse fields — ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications — are brought before the superior judiciary in the public interest litigation. Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters? It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.
    * It is true that while legislatures respond to the urgings of the people, the judges serve only for justice — for them justice is the only mandate. I see the NJAC verdict as a demonstration of constitutional compliance and not of the judiciary flexing its muscles to knock out the people’s will. For me, democracy is enhanced when judiciary effectively fulfils its constitutional mandate. Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.


    Why is it a bad decision (Criticism against collegium)-

    * The independence of the judiciary is no doubt one of the basic, unalterable features of the Constitution. But so far, no one has pronounced in any jurisdiction of the world that the independence of the judiciary can only be secured by the primacy of judges in the appointment of judges.
    * The Constitution nowhere provides that the judges of the SC and high courts should be appointed by judges or by the primacy of judges in the appointments system. On the other hand, the Constitution provides that every judge of the SC and high courts shall be appointed by the president, after consultation with judges of the SC and the high court (Articles 124 and 217). At the time of the framing of the Constitution, the Union Constitution Committee specifically
    provided that the president of India would appoint judges, after consultation with the chief justice of India (CJI) and such other judges as he considered necessary. This was accepted by the Constituent Assembly. B.R. Ambedkar rejected the primacy of the CJI in the matter of appointments as a dangerous proposition.
    * Despite good intentions, the collegium also has many faults. It lacks transparency, is inherently secretive, and provides for no oversight, due to which there are no checks or balances on the judiciary. Choosing judges based on undisclosed criteria in largely unknown circumstances has led to an increasing democratic deficit.
    * The criticisms against the collegium system were broadly on account of -(a) That some appointments were those of ‘undeserving’ candidates;
    (b) That some eminent Judges were not appointed because they did not conform to the ‘profiling’ of those who were selecting them; and
    (c) That little attention was paid to the appointment of Judges in the various High Courts.
    * Criticism which emerged against the collegium system was that the collegium instead of promoting pure merit, seemed to make appointments which did not always reflect the splendour of the superior judiciary.
    * Further, there was some doubt whether the theory of ‘legitimate expectation’ had itself robbed the High Courts of their independence because they would in turn look at possible ‘future prospects’.


    Criteria for selection of judges:
    In my view, the following 11-point matrix must be followed before a Judge of the Superior Court is appointed by the collegium, viz.:-
    1. Integrity as a lawyer or as a Judge;
    2. Ability to be fearless and to withstand pressures from all quarters including the Executive;
    3. The ability to distance oneself from one’s own political or other ideology;
    4. To act free from prejudice of any kind;
    5. The ability to listen;
    6. The ability to be able to have a sustained sense of contentment;
    7. The ability to develop knowledge in new areas, engage with the legal profession and other stakeholders with humility, and to become students as well in the process of learning;
    8. The ability to withdraw from friends, former clients, business interests and politicians;,
    9. The ability to migrate from a life of authority to the life of a common man, to be able to frequently observe and imbibe the contemporary realities of life, to be able to think out of the box freely, to be familiar with modern technology, and to be able to empathetically read in different spheres;
    10. The ability to cultivate personal interests and hobbies which will make the Judge a well-rounded person; and

    11. The ability to draft well-reasoned judgments and write clearly.


    Masala for Answer:

    Finance Minister, Arun Jaitley, said in his blog, “Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger.”

    In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.”

    To be, or not to be, that is the question...
  • edited October 2015
    ^^ Some points that I had jotted down.. take the discussion forward...
    To be, or not to be, that is the question...
  • edited October 2015
    Since everything has already been said by daydreamer, i will just comment on the conclusion, as i do not agree with his pin point, 11 point, recommendation, which i do not think belongs in an answer.

    Is a National Judicial Appointments Committee needed?

    The constitution makers did not believe in the complete insulation of the judiciary, rather, it had evolved on the light of excruciating circumstances of the emergency, where there was abuse of authority by the executive.

    However, times have now changed. The judiciary is in dire need of reforms. These are facts.
    1. There is a tremendous shortage of judges, which is one of the main reasons for judicial backlogs. Appointment have not kept pace with the need.
    2. Also, removal of judges is also difficult. Whereas even proven corrupt judges have not been impeached, in countries like USA, many judges have been removed. Removal of judges is an important practice which can enforce accountability.
    3. The present system is secretive, and not sacrosanct. There have been corrupt judges promoted to the SC.

    What is to be done?
    The primary apprehension of the judiciary is about the involvement of the executive in appointments. This can be allayed by modifying the committee, rather than abolishing it altogether.

    The National Judicial Appointment Committee is needed, but not in the from it exists.

    1. Instead, a transparent mechanism, based on precise criteria may be used for appointment, decided upon by a multi body committee of eminent persons and judges, minimising or removing executive interference. It will ensure transparency of procedure, and more democratic involvement. Such a body exists in countries such as UK.

    2. A full time staff and organizational structure, so that it can be specialized and help in overcoming the drastic shortfall in the number of judges, which is one of the reasons for judicial delay.

    CSE 2015. Got in.

    CSE 2016. Hopefully, the hallowed All India Services.
  • edited October 2015
    To add to the possible changes that can make NJAC relevant to need of 'primacy of judiciary in appointment of judges to SC and HC', we may consider confining veto power in the appointment of judges to members of judiciary only in the NJAC instead of scraping NJAC altogether.
  • Creating, scrapping and reinstating institutions can not be the way to reform our premium institute of governance. The issue was to reform opaqueness and clandestine nature of judicial appointment process. But now it has been blown to sheer friction between executive and judiciary.Thanks to our elected representatives and rigid judiciary. On executive part, mere transforming the institute structurally can not burn the malaise and judiciary should not cover itself with basic structure every time. The simple remedy lies to make the appointments transparent and visible , whatever will be the format.
  • Appointment of judges by NJAC will bring nepotism, favouratism into the system as law minister and two eminent person will appointed by involvement of government.This will be coutary to the basic principal of indipendence of judicery , further this may lead to biasness during decision making.
  • Kindly clarify--
    That an NJAC will be there --- constitutional amendment --hence the exclusivity of judges to appoint themselves was taken.. ..
    .
    Structure of NJAC ---- this could be changed by any future govt...
    So this structure wasn't a constitutional ammendment... Or could be changed.. By a lower majority than constitutional amendment one...

    Am I right?

    TIA
    Yes
  • Background:
    Appointment of the judges to the high court & Supreme court was earlier done as a consultative process between the executive and the judiciary. This changed after the second judges case wherein a new system of collegium was evolved.

    Under the collegium system, CJI along with two seniormost judges of the SC recommend the appointment of a judge. The number of the seniormost judges was increased from 2 to 4 under the Third Judges case.

    Arguments against NJAC:
    Inclusion of political executive in the commission in the form of PM and the leader of the opposition would hamper the quality of judgement vis a vis neutrality when most of our political leadership is corrupt and cases against them pending in the courts.
    Capabilities and capacity of the persons being considered for the appointment to SC and High Court are much better understood by the existing judges rather than those members fo the commission who are oblivious of the daily working of the courts.
    Democracy needs an independent judiciary. Political interference is not a term that has been unheard of in the appointments despite the collegium system and to include political executive directly would severely undermine the separation of powers principle of our constitution.

    Thus, the striking down of the NJAC can not be deemed as an act of tyranny, its a rather rightful decision to protect the sovereignty of the judiciary by the judiciary.

    Arguments for collegium:
    * As the selection process is insulated from any outside interference ie of legislature or of political executive the selection of judges has been kept free from any political interference

    Arguments against collegium
    *The whole process is pretty opaque as judges appoint the future judges with no set accountability towards anyone or anybody.
    *Inclusion of the executive in appointment of the judges was not seen as a corruption of the separation of powers doctrine by the constitution. Rather it deemed it necessary for the system of checks and balances required to ensure proper separation of powers.
    *The system puts an additional administrative burden of appointing and transferring judges on an already overburdened judiciary. Without a separate secretariat the collection of judgements done by the prospective candidates and checking their professional and personal backgrounds becomes cumbersome.

  • Supremacy of the Constitution and judicial independence are the considerable factors in NJAC issue,independent judiciary system can work effectively without any political interference.
    But the collegium system system should under go reforms by appoint judges on the basis of merit but not on the basis of seniority and partiality.
    present system of appointments (judges appoint judges) are not up to the mark of democracy , even though we are not coming out of the box and not creating confidence to the people that judiciary appointments are constitutionally fair.
    Our government has taken a great initiative in this issue by amending the Constitution(99th constitutional amendment), the Supreme is unable to accept the change in appointments through NJAC.in the view supreme court ,NJAC is an unconstitutional and it kills the indepence judiciary system.
    judiciary should create a ray of hope to normal citizens tat its is fair enough in its activities, thus collegium system should work properly and appoint judges without uni bias consideration, this can be achieved through the reforms in collegium system and ensure its working pattern is ethical and constitutional.
    Appointments should based on the wort of the candidate with his previous track record , i strongly support NJAC for appointment of judges because its procedure is fair enough to appointment process.i hope supreme also accept with some recommended changes.hopes for best judiciary system. .
  • Even supreme is always talks about the basic structure of the constitution but Articles 124 and 217 says that the judge of the SC and high courts shall be appointed by the president, after consultation with judges of the SC and the high court . here it indirectly means president is the union government.even in keshavanand bharathi case supreme commented on the basic structure of the constitution.
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