The NJAC Judgement – An Alternative View
The Supreme Court of India, by a majority opinion, has struck down the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission to appoint judges of the High Court and the Supreme Court. Having read the opinion of the five Hon’ble Judges, a few issues arise in my mind.
The key rationale behind the majority opinion appears to be that independence of judiciary is an essential ingredient of the basic structure of the Constitution. This is unquestionably a correct proposition. Having stated this, the majority transgresses into an erroneous logic. It argues that the presence of a Law Minister in the Commission and the appointment of two eminent persons in the Commission by a group, which will, besides Chief Justice of India, comprise of the Prime Minister and the Leader of the Opposition, will constitute political involvement in the judicial appointments. Judges appointed on this basis may feel gratified to the politicians. Political persons would be obviously guided by their political interest. The Judges warn of “adverse” consequences if politicians were a part of the appointment process. Hence protection of the judiciary from political persons was essential. This is key reason on which constitution amendment, unanimously passed by both the Houses of Parliament and the State Legislature, has been struck down.
Politician bashing is the key to the judgement. One learned judge argues that Shri L.K. Advani has opined that dangers of an Emergency like situation are still there. Civil society in India is not strong and, therefore, you need an independent judiciary. Another argues that it may be possible that the present Government does not favour appointment of persons with alternative sexuality as Judges of the High Court and the Supreme Court. Politician bashing is akin to the 9.00 PM television programmes.
The judgement ignores the larger constitutional structure of India. Unquestionably independence of the judiciary is a part of the basic structure of the Constitution. It needs to be preserved. But the judgement ignores the fact that there are several other features of the Constitution which comprise the basic structure. The most important basic structure of the Indian Constitution is Parliamentary democracy. The next important basic structure of the Indian Constitution is an elected Government which represents the will of the sovereign. The Prime Minister in Parliamentary democracy is the most important accountable institution. The Leader of the Opposition is an essential aspect of that basic structure representing the alternative voice in Parliament. The Law Minister represents a key basic structure of the Constitution; the Council of Ministers, which is accountable to Parliament. All these institutions, Parliamentary sovereignty, an elected Government, a Prime Minister, Leader of Opposition, Law Minister are a part of the Constitution’s basic structure. They represent the will of the people. The majority opinion was understandably concerned with one basic structure – independence of judiciary - but to rubbish all other basic structures by referring to them as “politicians” and passing the judgement on a rationale that India’s democracy has to be saved from its elected representatives. The judgement has upheld the primacy of one basic structure - independence of judiciary - but diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected Government, the Council of Ministers, an elected Prime Minister and the elected Leader of the Opposition. This is the fundamental error on which the majority has fallen. A constitutional court, while interpreting the Constitution, had to base the judgement on constitutional principles. There is no constitutional principle that democracy and its institutions has to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?
As someone who has spent more years in court than in Parliament, I feel constrained to speak out for Indian democracy. There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected.
The illustrations given had to be on a sounder footing. If one leader feels that there are dangers of emergency, there is no presumption that only the Supreme Court can save it. When in the mid-Seventies the Emergency was proclaimed, it was people like me – the politicians, who fought out and went to prison. It was Supreme Court that caved in and, therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history. As for the cause of those representing alternative sexuality, the Delhi High Court had decriminalized it. I am a part of the present Government, but I had publically supported opinion of the Delhi High Court. It was the Supreme Court which recriminalized alternative sexuality. The assumption that the cause of the practitioners of alternative sexuality to be appointed as judges, can only be protected by Supreme Court, is again belied by history. The Supreme Court opinion is final. It is not infallible.
The judgement interprets the provision of Article 124 and 217 of the Constitution. Article 124 deals with the appointment of Judges in the Supreme Court and Article 217 deals with the appointment of Judges of the High Court. Both provide for the appointment to be made by the President in consultation with the Chief Justice of India. The mandate of the Constitution was that Chief Justice of India is only a ‘Consultee’. The President is the Appointing Authority. The basic principle of interpretation is that a law may be interpreted to give it an expanded meaning, but they cannot be rewritten to mean the very opposite. In the second Judge’s case, the Court declared Chief Justice the Appointing Authority and the President a ‘Consultee’. In the third Judge’s case, the courts interpreted the Chief Justice to mean a Collegium of Judges. President’s primacy was replaced with the Chief Justice’s or the Collegium’s primacy. In the fourth Judge’s case (the present one) has now interpreted Article 124 and 217 to imply ‘Exclusivity’ of the Chief Justice in the matter of appointment excluding the role of the President almost entirely. No principle of interpretation of law anywhere in the world, gives the judicial institutions the jurisdiction to interpret a constitutional provision to mean the opposite of what the Constituent Assembly had said. This is the second fundamental error in the judgement. The court can only interpret – it cannot be the third chamber of the legislature to rewrite a law.
Having struck down the 99th Constitutional Amendment, the Court decided to re-legislate. The court quashed the 99th Constitutional Amendment. The court is entitled to do so. While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do. This is the third error in the judgement.
The fourth principle on which the judgement falls into an error is while stating that collegium system, which is a product of the judicial legislation, is defective. It fixed a hearing for its improvement. The court has again assumed the role of being the third chamber. If there is a problem with the procedure of judicial appointments, have those legislative changes to be evolved outside the legislature?
As someone who is equally concerned about the independence of judiciary and the sovereignty of India’s Parliament, I believe that the two can and must co-exist. Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy.
ybrao-a-donkey's humble views. You need not agree with me. You have every right to express your views and criticise me. Welcome. वैबीराव गधे के विनम्र राय। आप मुझ से सहमत होने के निर्बंध नहीं है। आप को अपने अभिप्रायों को व्यक्त करने के और मुझे खुरदा पकडने के सभी हक हैं। स्वागत. వైబీరావు గాడిద వినమ్ర వ్యాఖ్య. మీరు నాతో ఏకీభవించవలసిన నిర్బంధం లేదు. మీ అభిప్రాయాలను వ్యక్తం చేసే స్వేఛ్ఛ, నన్ను విమర్శించే అన్ని హక్కులు మీకున్నాయి. స్వాగతం.
The points which Mr. Arun Jaitley raised are theoretically correct. But at practice level, both Congress-UPA and BJP-NDA wanted to interfere into the appointment of Supreme Court and High Court Judges, and introduce own nominees into Judiciary as Judges and influence their decision-making. With this malicious motive only, both the UPA and NDA have joined and passed the NJAC Bill both in Lok Sabha and Rajya Sabha.
श्री अरुण जैट्ली महोदय से उठा हुआ वादना अंश, सैध्धांतिक दृक्कोण से सत्य हैं। परन्तु वास्तविक अचरण रूप में, भिन्न है। क्यों कि, दोनों कांग्रॆस-यूपीये, बीजेपी-ऎनडीए सुप्रीम कोर्ट और हैकोर्ट जजों के नियामकों में हस्ताक्षेप और छेड-छाड करके, अपने अपने दासीभूत व्यक्तियों को न्यायमूर्ती बना कर, न्याय निर्णयों में पाक्षिकता लाने के लिये, और न्याय व्यवस्था में कंटक डाल कर बाधा उठाने के लिये अत्युत्सुक हैं। इस दुर्भावना पूर्ण लक्ष्य से ही, दोनों मिल-जुल कर, षडयंत्र बना कर, नेशनल जुडिशियल अपायिंटमॆंट्स कमीशन बिल को लोक सभा और राज्य सभा में पास किये।
శ్రీ అరుణ్ జైట్లీ మహోదయుల వారు నొక్కి వక్కాణించిన విషయాలు సైధ్ధాంతిక దృక్కోణం లోంచి చూస్తే సరియైనవే. కానీ ఆచరణ విషయానికి వస్తే, కాంగ్రెస్ యూ పీ ఏ , మరియు బీజేపీ ఎన్డీఏ లు సుప్రీం కోర్టు మరియు హైకోర్టు జడ్జీల నియామకంలో జోక్యం చేసుకుని, తమ పార్టీలకు అనుకూలురైన వ్యక్తులను ఉన్నత , ఉచ్చతర న్యాయ మూర్తులుగా నియమింప చేసుకుని కోర్టుల నిర్ణయాలను, తీర్పులను ప్రభావితం చేయాలనే దుష్ట లక్ష్యం తో నే అన్ని పార్టీలు కుమ్మక్కయ్యి, ఎన్ జె ఎ సీ బిల్లును లోక్ సభలో, రాజ్యసభలో ముందుకు నెట్టి, చట్టంగా చేశాయి.
Nobody can and nobody will say that there are no defects and shortcomings in the functioning of the present system of Supreme Court Collegium playing supreme role in the appointment of Supreme Court and High Court judges. Everybody knows, that there is no transparency in the appointments. Even Collegium members will probably concede this fact.
But at the same time, the turn of events during both the Manmohan rule and the Modi rule prove that our Executive and Parliament (includes President also as per definition) are unable to design a fool-proof Judges Appointment System which will bring transparency and at the same time protect the true independence of Judiciary.
Prove that Parliament and Executive cannot appoint truly independent judges, and that they will appoint only stooges! आप यह निरूपण कीजिये कि पार्लमॆंट और कार्य निर्वाहक वर्ग सत्य रूप में स्वतंत्र न्याय मूर्तियों को नियामक नहीं कर सकते और सिर्फ उनके दासों को ही न्याय मूर्ती पदों पर बिठाते। మీరు ఇది ఋజువు చేయండి. పార్లమెంటు, కార్యనిర్వాహక వర్గం నిజంగా స్వతంత్రులైన న్యాయమూర్తులను నియమించలేవని, అవి కేవలం తమకు బంట్రోతులుగా ఉండే వ్యక్తులను మాత్రంమే న్యాయ మూర్తులుగా నియమిస్తాయని.
Ans जवाब జవాబు ఓస్ అంతేగా
You take the appointments made by BJP after its coming into power, with a very very clear mandate from people. Can you show at least one instance where the appointments made by it have been acclaimed by people?
Let us take the appointment of Governors of States. In how many States, did BJP appoint impartial Governors? Intellectuals? Persons other than belonging to its own party or alliance?
A Supreme Court Chief Justice is supposed to be nearly equal to Prime Minister and the Vice President of India (next only to President of India). How BJP could tempt a REtd. CJI Justice Bala Krishnan to go as Governor of Kerala ! Governors of States in reality (not theory) both during the UPA Rule and BJP Rule have become peons of the Party in Power at Centre.
BJP could not manage even a very very small appointment of the Head of a State-run Film INstitute in Pune! It could not get an eminent person to run the INstitute, other than its own party worker.
See the manner in which our beloved PM, Shri Narendra Modi chose his Union Human Resources Development Minister! Technically , the PM may have exclusive prerogative to select anybody as his Cabinet member. But at the same time, natural justice, and reasonability test of a decision should be respected.
See the manner in which Union Foreign Secretary, Union Home Secretary were made to quit, by creating constrictive situations for them! Being very Senior Persons, they would have retired in the normal manner without any buzz, yet BJP could not afford to wait a few months.
What is happening in between RBI and the Union Finance Ministry, nobody knows. But efforts seem to being made to bring RBI to fall at the feet of the Finance Ministry.
Another important observation we can make with regard to the executive-judiciary-legislature relationships is: the scant regard which the erstwhile UPA Govt. and the incumbent NDA Govt., almost all the 29 Indian State Govts. have shown in insisting on compulsory production of Adhar Card for anything connected to the Govt. Having designed a defective Adhar card, having handed over the finger prints and irises of crores of people to private agencies (we do not know how many of them have sold out the data privately to aliens!), the Govt Depts. coolly report to courts that citizens are voluntarily coming forward to accept Adhar cards. The actual situation is, citizens has no alternative. In Telugu language we can say: "AdhAr card tEka castAra?" (English: Will they die without bringing the Adhar CArd?). When a person's gas refill booking is blocked because it is not linked to Adhar Card what will he do? He has forgotten cooking with firewood or charcoal. Kerosene is also linked to Adhar CArd. People in 2014 felt that it was Congress which was responsible for all their hardships. By 2019, people will start feeling that BJP is responsible for their continued hardships even after electing BJP.
Here I am finding fault with both UPA and NDA. Not with NDA and BJP alone. Instead of trying to identify defects in Adhar Card Scheme which have led to the Supreme Court's order not to insist on Adhar Cards, and correcting them so as to make them more secure and more beneficial and acceptable to public voluntarily, all the Government Institutions are persistently forcing people to produce Adhar Cards, and misrepresenting to Supreme Court with petitions again and again that people are voluntarily coming forward. In chess, there is a maxim "Always check, finally mate!". But chess experts do not agree with the maxim that continuous checking will lead to ultimate mate. Changing positions can reverse the fate of the continuous checker! Executive and Parliaments in India have a long long way to go in their quest towards true justice to people. For that, they should cease thinking that Judiciary is a hindrance or a hurdle or an obstacle in their path. They should regard that Justice is their facilitator and Supporter. Politicians and Bureaucrats have to change their mindsets.
Politicians have to keep in mind that people elect them only for five years, though repetitions are possible by deceptive methods. In a climate, where political parties cannot, howsoever, honestly they try to fulfill the needs of people, cannot really achieve that goal, simply because people are poor, illiterate, lack skills, there are no exportable surpluses for earning incomes from abroad, and the population is growing at an explosive rate. That failure in fulfilling the promises, will lead to the incumbent party being pulverised into unmovable mass and thrown out of power, or rendered frail incapable of moving without the stretches of coalition. At every 5 year outing, this alternation ought to take place. If all the actions of the bureaucrats and politicians take care of the requirements of not only the statutory justice, but also natural justice, proportionality, reasonableness, probably they can count on support of Supreme Court and High Courts at every stage.
Of course, we cannot blame BJP alone for this tyrannical nature of our rulers at top though both the Fronts are elected only for five years and though they can be mashed into fine dough in the next election, because no politician can be free from arrogance as power and absolute power can corrupt even the most virtuous individuals. Even during UPA Rule, tyranny of elected leaders was present. BJP instead of discontinuing the arbitrary and draconian practices of the UPA, is continuing the tyranny with equal gusto. Consequence of this continuation is, people have started feeling the suffocation, and are eagerly looking for 2019, though they know pretty well that there will not be much to choose between the Devil and the Deep Sea. !
Hence why not the politicians allow the Judiciary to evolve itself instead of interfering with it, as if everything is milk and cheese with the Parliament and Executive. First let the Parliament and Cabinet rectify their own deficiencies, before embarking upon cleaning the Judiciary.
Can you suggest an alternative solution? आप दूसरे समाधान और सुझाव को सूचना दे सकते ? మీరు వేరొక పరిష్కారాన్ని దేనినైనా సూచించ గలరా ?
Nobody will dispute the Supremacy of the Parliament in a Democratic setup. प्रजास्वामिक व्यवस्था में , संसद के सर्वाधिक्यता को , कोई नहीं प्रश्न कर सकते। పార్లమెంటరీ ప్రజాస్వామిక వ్యవస్థలో పార్లమెంటు యొక్క సర్వాధిక్యతను ఎవరూ అధిక్షేపించరు.
At the same time, the decisions taken by Parliament should not go beyond Natural Justice, and the boundaries of proportionality and reasonableness.
Our Parliament is a lazy Parliament. It hardly meets 90 days in a year of 365 days. Even when it meets, it scarcely discuses the veracity of bills comprehensively. Many bills are passed into Acts, in a perfunctory (लापरवाही यन्त्रवत पध्धती) manner. Financial Accounts of Ministries get guillotined without being properly discussed.
REcall the 6th Apr. 2015 dinner for Judges spoken to by the PM and the CJI. While the CJI Justice H.L. Dattu seemed to hold a view that Judiciary and Executive are siblings and that both of them hold each other's hands, Mr. Narendra Modi seemed to hold a view that Executive is the teacher, and the Judges are pupils, if not the PM is master-preceptor and the Judges are servants. Or else, a just nine-months old PM who grew-up from being a Chief Minister of one among 29 States of India to be PM, trying to pontficate to Judges, how should we take? Mr. Narendra MOdi seemed to have wanted the Judges also to fall in line with bureaucrats like IAS-IFS-IRS Officials who can be called in by striking a hammer on a drum (A sort of bell to call servants). In Telugu language we have a phrase "EvarakkaDa" (English meaning : Who is there!), when the king utters this phrase, whoever is there nearby comes forward with folded hands saying "Chittam prabhU !" (English: My Lord I shall follow your mind (I shall follow your commands and dictates, command me my master).
Mr.Modi appeared to be a person in a hurry to lecture to judges. (In Telugu language, we have a proverb: kotta bichchagADu podderegaDu. English: A new beggar does not know the timings to beg. First time in the PM's seat a la Nahusha in the INdra's seat in Heaven, Mr. Modi seems to have acted in haste).
Mr. Modi is aware that hundreds of thousands of cases are pending in HIgh Courts and Supreme Courts. Instead of trying to preach judges, or going for a National JUdicial Appointments BIll in connivance with Congress, he ought to have requested the CJI to take up with his Collegium for appointment of large number of temporary additional Judges and establish additional courts with evening benches (2 shifts for High Courts and Supreme Court - first shift for regular work, and the second shift to clear the extremely old pending cases- the second shift to be handled by Special Benches for old cases). He ought to have promised to release required additional funds. Supreme Court needed greater autonomy for establishing more Courts, appointing more judges, and creating more benches with more shifts. PM also should have requested them to go for a paradigm upward shift for computerisation of operations. From Apr. 2015 to Oct. 2015 nothing seems to have progressed in this respect. BY appointing NJAC , Govt. effectually deactivated the Supreme Court, in clearance of pending cases.
In the Good Friday speech, we can see one important observation made by Mr. Modi:-
"...People can watch, assess and rip apart politicians, but judiciary is not lucky enough in this regard...".
What is the use of people ripping apart the politicians? Did the politicians mend their ways in any manner? On the other hand, they are ripping apart people into fragments creating caste, religious, regional, linguistic rifts. Have the politicians stopped bribing the people with money and liquor to purchase votes? Have the bosses of any single party stopped nominating persons with shoddy criminal backgrounds as Party candidates for Assembly and LOk Sabha? If substntial number of Members of Parliament have criminal backgrounds, specialise in rude behaviors, what type of bills and laws they will be passing? What type of democracy we are going to have? HOw can we expect the Supreme Court to acknowledge and respect the Supremacy of Parliament? Mr. Modi as Supreme BOss of BJP should introspect.
OK, all these things we know. Give your suggestion. हाँ, ये सभी विषय हमें पता हैं। आपका सूचना दीजिये. ఇవన్నీ మాకు తెలుసులేండి. ఏదైనా నిర్మాణాత్మక పథకం చెప్పండి.
Till our Legislatures and Executives become truly democratic, it will be better that they are prevented from interfering into the appointment of judges. How far Legislature and Executive have reformed themselves, we can re-examine after 2019 Elections.
In the meantime we can have a Truly independent Judicial Administration Commission constituted in the following manner.
a) Seniormost Retd. CJI of India (unless he is bed-ridden) should be the Chairman of the Commission.
b) The Judicial Administration Commission should have all the Retd. Supreme Court Judges, High Court CJs as automatic members. There should be no need for them to be appointed by anybody. When a High Court CJI or Supreme Court Judge retires, its Registrar should send an intimation to the JAC., to enable them to add the Retd. Judge as a new member.
c) Judicial Administration Commission can not only look after the appointments of Judges, but also take care of other issues like allegations against Supreme Court and High Court Judges, such as harassment of women, corruption. NJAC will only be a wing of Judicial Administration Commission.
d) Executive Committee of the JAdmin Commission should be elected by its GEneral body, through Secret ballots.
e) All important decisions of the JAC to be taken by its General BOdy through secret ballots. In respect of less important matters, JAC's Executive Committee should take decisions through secret ballots. All their decisions should stand the tests of Natural Justice, Tests of proportionality and reasonableness.
f) Judicial Appointments Commission should make appointments of Judges through transparent methods like recruitment advertisements, Written Tests, Viva Voce, Moot Courts etc. Final lists should be cleared both by the Executive Committee and the General Body through secret ballots.
g) At no stage, Government or the Parliament or the Supreme Court, should interfere into the affairs of the Judicial Administration Commission, or in the appointment of the Commission Members.
h) Collegium System can be discontinued.
If Government introduces this type of Judicial Administration Commission Bill which will have a General Body with automatic self-constituted members who are retired Judges, probably Supreme Court will not object.
To continue. सशेष्. సశేషం.