TL;DR This post is regarding the recent squashing of NJAC act by Indian Supreme Court .
There are some South Indian films where there is a village head and passes judgements on issues related to that village. And yes , many times the judgments give justice. But then he becomes old and is replaced by his son or his favorite person. We dont feel any discomfort because its usually the hero who plays the new guy role and if not, its the villain who has a hero and a rebellion . What if this really happens in a real life state system ? and let me remind you , are there any heroes in real life ? Would you be comfortable that a person who decides the most contentious issues in your village, is elected by a non transparent mechanism ?
Well, now replace Village with India , and village head with Supreme court judges . Villages might not have written rules but it is as good as our complex legal proceedings and procedures. There is no transparent mechanism on what basis they are appointed to Supreme court and high courts . Yes, Supreme court is Supreme and has delivered justice on lot of issues which were highlighted in media and became a TRP sensation. But there are many instances when an influential entity got justice in their way within the judicial constraints. Also, no one can criticize a Supreme court judgment as its a contempt of court and even considered as sedition sometimes. Yet, people in the heart know 100% Justice is not delivered 100% of all the times. We know persons who have scams of one lakh crores and even after proven guilty , can now be Leader of Opposition in a state. We know persons who got dethroned from Chief minister due to judicial intervention on corruption , yet back to CM chair in an year with you-know-what loopholes .
A former Indian Supreme Court Justice Examines Corruption in the Judiciary here and called Supreme court workings “the best kept secret in the country”
Prashant Bhushan , noted activist says out of the last 16 to 17 Chief Justices, half have been corrupt;Link is here . Not all Supreme court judges have declared their assets ( Link ) and they only describe personal and spouse assets and not other family members. Currently , Supreme court judges are appointed by Supreme court judges and this system is called Collegium.
Now some Civics 101; Legislative branch of government (i.e politicians) have a check every 5 years and are accountable to public and judiciary. Executive branch of Government (i.e IAS and other bureaucracy) are accountable to public and Legislative can control it. But why is the Judiciary exempt from check and accountability completely. There is a process called impeachment but it requires 2/3rd majority of legislatures and usually doesnt happen ; Only 2 judges have been so far . But is it not better to avoid bad than to mitigate them with such extreme process ? So, how do you ensure this close knit people organization which impacts a 1.2 billion nation’s present and future, be as transparent as possible ?
NJAC or National Judicial Appointment Commission was an act, initiated by Loksatta Jayaprakash Narayan , proposed and prepared by three eminent Retired Supreme court jurists , passed by Parliament, signed by President and ratified by 20 states as of now. This ensures that Supreme court judges, Chief justice of India, High court chief justices , High court judges , Judges transfers are recommended by a 6 member panel consisting of Chief Justice of India, Two Senior judges of Supreme court (next in line to Chief justice) , Union Law minister, Two eminent persons for a duration of 3 years recommended by Prime Minster, Leader of Opposition, Chief Justice .
Why are we involving politicians here ?
Arent they corrupt and can influence judiciary ?
Isn’t Judiciary supposed to be Independent as per constitution ?
Only 1 out of 6 is a politician in NJAC and its the Law minister of India. Judiciary still has the majority vote and there is a veto power for 2 of NJAC members . So, a bad judge even if he is favorite of all judges cannot make it as Law minster can object . Vice Versa , a favourite of politicians cannot make it as Judiciary is majority and 5 other people have veto power.
Yes, as per constitution “Judiciary has to be independent ” and is part of basic doctrine which is not allowed to change . But Independence can also be interpreter as Functionality and NJAC does not practically impact Independence of Judiciary.
Now some technicalities; As per Article 368 of Indian Constitution, any constitutional amendment pertaining to the Supreme Court and High Courts require special majority in the Parliament and ratification by half the states. And NJAC successfully passed all stages and got accent by the President of India. That means the whole process of framing NJAC is absolutely constitutional which is now termed ‘unconstitutional’ by the Supreme Court. But, the process of Supreme Court repealing NJAC is also constitutional.
Article 50 talks only about separation between executive and judiciary: “The State shall take steps to separate the judiciary from the executive in the public services of the State”. Article 50 is within part IV of the constitution, i.e. it is one of the articles of the Directive Principles of State Policy (DPSP). DPSP are non-justiciable in nature and therefore, in my opinion even if NJAC Act violate the article 50, it cannot be a basis for declaring NJAC Act as unconstitutional. DPSP are positive obligation of the state and not the negative obligations.
Almost all the major democratic countries (Link for some list) have higher judiciary elected as transparent as possible with sufficient checks and balances with involvement of Executive or Legislative branches of Government except INDIA. Judiciary is probably the most confused , enigmatic branch of Governance in India. Unless, there is transparency and proper process , we cannot expect for more reforms to resolve the pending 3 crore cases.
“In retrospect, the events of the 1970s and 1980s (Events preceeding to Emergency) justified the Supreme Court taking unto itself the appointment of judges, in the interest of keeping the judiciary independent. But times have changed. The judiciary’s independence is no longer in doubt. And India is a much more mature democracy, whose citizens deserve better. It is time for the highest court to loosen its grip a little, and let the pendulum, which had gone from one extreme to the other, swing back to the middle. “