Move to reform judiciary backfires

What is remarkable about the order is that while the bench held the Collegium System as it existed before the NJAC 'operative,’ it also listed the petitions on November 3 to invite suggestions to improvethe working of the existing Collegium System.

"Help us decide for a better system of judicial appointments," Justice J S Khehar told the Centre and the petitioners. The Bench said that the judgement was the "collective view of the court.”

Does this lead to a confrontation now between the Judiciary and the Legislature-Executive combine? The Bench struck down the government's arguments that the question of validity of the NJAC and the 99th Constitutional Amendment should be referred to a larger Bench in light of the two 'Judges Cases' of 1993 and 1998.

One of the saner voices against the Amendment was that of AIMIM chief, Asaduddin Owaisi, who warned the government against the move. He said handing over a blank cheque to the executive was not good.

When the Supreme Court on Friday struck down the National Judicial Appointments Commission (NJAC) Act calling it unconstitutional, it more or less drew the line between the Judiciary and the Legislature firmly by saying that judges should be appointed by the judges themselves.

In what could be called a setback to the NDA government, the apex court brought back the Collegium System by calling the 99th Amendment to the Constitution unconstitutional.

If the government was under any illusion that its amendment would be upheld because it was brought into effect almost unanimously by both the Houses of Parliament, then it was grossly mistaken.

The unanimous verdict quashing the NJAC Act was delivered by a five-judge Constitution bench comprising Justices J S Khehar, J Chelameswar , Madan B Lokur, Kurian Joseph and A K Goel, which also rejected the plea of Central government to refer for review to larger bench the 1993 and 1998 verdicts of the apex court on the appointment of judges to the higher judiciary.

The constitution amendment and the NJAC Act were brought to replace the 1993 Collegium System for the appointment of judges to the Supreme Court and high courts. "The system of appointment of judges to the Supreme Court,

and chief justices and judges to the high courts; and transfer of chief justices and judges of high courts from one high court, to another, as existing prior to the constitution (99th Amendment) Act, 2014 (called Collegium System), is declared to be operative," the court order said.

What is remarkable about the order is that while the bench held the Collegium System as it existed before the NJAC 'operative,’ it also listed the petitions on November 3 to invite suggestions to improve the working of the existing Collegium System.

"Help us decide for a better system of judicial appointments," Justice J S Khehar told the Centre and the petitioners. The Bench said that the judgement was the "collective view of the court.”

Does this lead to a confrontation now between the Judiciary and Legislature-Executive combine? The Bench struck down on the government's arguments that the question of validity of the NJAC and the 99th Constitutional Amendment should be referred to a larger Bench in light of the two 'Judges Cases' of 1993 and 1998.

Though a "collective order", Justice J Chelameswar said he has "upheld" the constitutionality of the 99th Constitutional Amendment Act, but recused himself from passing any judgment on the NJAC statute as the majority of four had already held it unconstitutional.

The government is bound to argue that it is not that just the Parliament, but also about 20 State Legislatures which ratified it and it got the Presidential assent too, hence the Judiciary had no right to reverse it.

There was one highly contentious part to the Amendment proposed by the Legislature earlier in accommodating two eminent citizens in the NJAC along with the Chief Justice of India and two senior most judges of the apex court and the Union Law Minister.

Reactions to the judgement are varied and the media lapped up every word. "Historic day for democracy. Law officers should resign" said Ram Jethmalani. Kapil Sibal, former Union Minister, said: “Ill-conceived legislation by the NDA govt.

Arun Jaitley has to concentrate more on his ministry than other ones.” Of course, it was convenient for Sibal to forget that his own party, the Congress, was a party to the legislation.

Differences were obvious between those playing dual roles and the strictly legal professionals. While Harish Salve, noted Counsel, said the SC was giving a message,

Congress' K T R Tulsi remarked that he was disappointed. It was tyranny of the unelected over the elected, he even quoted one of his colleagues.

There was more of a balanced view too in what Senior Advocate Gopal Subramanium said, that it was a good sign that the SC has called for further discussions on the Collegium System. He felt that it showed that it accepted there are defects in the system and that there is opacity.

Secondly, he said, the Court had stopped the interference of the Executive. It has stood by the basic principle. It is the most remarkable judgement after Keshavananda Bharti, he added.

It may be recalled that there were some reservations in some quarterswhen the Amendment Bill was passed. The provisions were such that if even one member of the3 NJAC would not agree, then the appointment could be held up, even if the President sent it for review.

Did the NDA government err in rushing through the same once it had come to power? Why did almost every party approve of it and why was there such unanimity? Are these political parties afraid of the independent and powerful judiciary?

Was there bitterness amongst them over certain rulings and observations by the courts? Was there even a shred of evidence to point out that the existing judicial system was the most inefficient or corrupt?

One of the saner voices against the Amendment was that of AIMIM chief, Asaduddin Owaisi, who warned the government against the move. He said handing over a blank cheque to the executive was not good.

But the general rhetoric against the alleged opaque and arbitrary system drowned such voices in its din and carried the day for the Legislature and Executive to triumph.

There were a couple of others who tried to reason out arguing that India being a country where the government itself was a major litigant, it would be bad to allow a litigant to appoint the judges. But the majority was happy at their privilege in attacking the judges.

The Judiciary was meant to interpret the laws but not make laws, they vehemently argued.However, there were no answers to the following questions then. Why have a six-member Judicial Appointments Commission? Shouldn’t it have been an odd number?

How will the two ‘eminent citizens’ be selected? Shouldn’t there be similar commissions at the state level? Why not launch an All-India Judicial Service to ensure direct recruitment of district judges through competition?

The law minister had no clear answer, except to urge members to trust the sagacity of the Prime Minister, the CJI and the leader of the largest party in the Lok Sabha, who together will sel¬ect the two eminent citizens.

Trust the sagacity of the Prime Minister? Well, if there is anything in short supply in this country it was this trust. Lack of trust has in the last few months has yielded place to tonnes of distrust.Someone like Naseeruddin Shah had to lament "is it because I am a Muslim," that, “I am being targeted for having gone to attend the Sudheendra Kuklarni's book release function at Mumbai.”

Ok. Let us not distrust anyone, one could say. But, today when politics are played out as Theatre of Silence, scepticism and distrust are the natural fallout. We know what the Collegium is. But could we say the same of the NJAC if it were to fall in place? After all, the devil has power to assume a pleasing shape!

For all one knows, there could be an apprehension that even the Judiciary would be reduced to the level of other institutions that are in the news of late, by way of questionable appointments, that the Apex court decreed thus. Or May be the judges could recall Poet John Gay who wrote:

"When rogues like these (a sparrow cries) To honours and employments rise, I court no favour, ask no place, For such preferment is disgrace."