SC’s NJAC verdict sets stage for judiciary-legislature face-off

  • Satya Prakash, Hindustan Times
  • Updated: Oct 17, 2015 00:05 IST
The Indian judiciary’s self-righteousness may not serve the purpose. (File Photo)

The Supreme Court’s verdict restoring the two-decade-old opaque collegium system has sabotaged Parliament’s attempt to end judiciary’s stranglehold over who joins its ranks and make the appointment process transparent.

The court’s argument that the 99th constitutional amendment and the National Judicial Appointments Commission (NJAC) Act violated the basic structure of the Constitution is self-defeating. Article 368 vests the power to amend the Constitution with Parliament, and not with the country’s top court. Yet, in 1993 the court staged a judicial coup by virtually amending articles 124 and 217 to arrogate to itself powers to appoint judges.

Read: Legal eagles split on NJAC scrapping, Sibal attacks Modi govt

One accepts the argument that independence of judiciary is paramount and is a part of the basic structure of the Constitution. But to say that the presence of a member of the executive and two eminent persons representing civil society in NJAC would destroy its independence is going too far. After all they are legitimate stakeholders in the system.

The basic structure of the Constitution also envisages a fine balance between the three organs of the state. Didn’t the 1993 verdict – by which the SC usurped the power to appoint judges -- violate the basic structure?

India is the only country where judges appoint judges. Does it mean that the judiciary in the rest of the world is not independent?

In most democratic countries, judiciary does not have a monopoly over judicial appointments. In the UK, the judicial appointments commission is headed by a lay person.

The Indian judiciary’s self-righteousness may not serve the purpose.

In 2009, the collegium recommended Karnataka chief justice PD Dinakaran’s elevation to the SC when he was facing several corruption charges. Wasn’t the independence of judiciary compromised then?

The Supreme Court has been a votary of transparency in governance and public life. Unfortunately, the same yardstick doesn’t seem to apply to judiciary -- resistance to RTI and declaration of judges’ assets reflects a mindset of being comfortable in opacity.

The SC has admitted that the collegium system ignored deserving persons for subjective reasons and purposely delayed certain appointments to benefit vested choices or to deny benefits to the less patronised ones. The dictatorial attitude of collegium was seriously affecting the “self-respect and dignity” of judges, said justice Kurian Joseph.

There is enough evidence to show that the old system is faulty while the NJAC was shot down without being tested.

One can still understand the SC tweaking the composition of NJAC to “correct” a perceived bias in favour of the executive but to ignore the will of Parliament and people and go back to an admittedly bad system is incomprehensible. The political class has been unanimous in its opposition to the judicial takeover of judges’ appointments. And, Parliament isn’t out of options yet.

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