It is rather disappointing that the Supreme Court has declared the proposed NJAC as unconstitutional.
The Constitution clearly states that the judges in the higher judiciary are to be appointed by the President in consultation with the Chief Justice of India. Consultation means exchange of facts and views and by no stretch of imagination does it imply that the President cannot reject the views of the CJI under any circumstance. If the framers of the Constitution intended that CJI’s views shall always prevail, they would have written that judges will be appointed only with the consent of the CJI. Surely, the framers of the Constitution knew the difference between ‘consultation’ and ‘consent’! Yet, the SC has persisted in its erroneous view, so much so that the present bench rejected the plea of the govt to refer the matter to a larger bench and foreclosed the possibility of correcting that error. One of the reasons advanced for rejecting NJAC is the provision for including two eminent persons in the selection panel. A most extraordinary argument has been advanced that the PM and the Leader of Opposition can collude to override the objections of the CJI and place their favorites in the selection panel and subsequently these eminent persons will collude with the politicians to select unsuitable persons as judges!! Equally extraordinary is the argument that these persons may not understand the working of the judicial system and so they cannot be involved in the selection of judges.
Firstly, the working of the system is not that complex that no outsider can understand it. Secondly, the selection panel will not be required to comment on the working of the system but will be required only to examine the material placed before it and decide whether a person is suitable for appointment as a Judge. In the very nature of things, the opinions of the CJI and other Judges in the panel will weigh heavily with the panel and nobody is likely to be appointed despite their objections. On the other hand, the NJAC couldl prevent the appointment of unsuitable persons. The case of the Judge of the Madras High Court who was appointed on the insistence of the collegium and later denied confirmation on their very recommendation is very much in the public domain.(It is also remarkable that Justice Lodha accepted in a TV debate that this happened, but there was not even a hint that any one was admonished for pressing for the appointment of a wrong person).
It has also been stated that if the Executive has a say in the appointment of the Judges, it will effectively control the Judiciary. Many of us are admirers of Munshi Prem Chand and vividly recall his story ‘Panch Parameswar’ wherein the Panch nominated by overwhelmingly more powerful party in a dispute gives a judgement against that very party because, as he explains later, he had been placed in the ‘seat justice’. Are new Judges not capable of standing up for Justice as their pre-1992 predecessors were? If this proposition is accepted, then Should we give up hopes of our public servants acting without fear or favour?
My understanding is that people of India are sovereign and they have given themselves this Constitution. Have they thereby lost their authority to amend the Constitution? If they have not, how do they express their will to amend? This bill was passed unanimously by both the houses of Parliament and ratified similarly by most of the States. Was this not a clear expression of the will of the Sovereign people?
The judgement in this case is costing the Supreme Court in terms of credibility and respect in the public eye; the ongoing exercise to refine the collegium system, which is basically an exercise to legitimize the illegitimate will not be much help in restoring it.
By Premdhar Malaviya
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