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Collegium vs NJAC: Govt seeks participatory role in judicial appointments


Ever since the Supreme Court declared the NJAC unconstitutional and void, all eyes have been on the Government to see how it responds to the controversial judgment.

The Supreme Court of India, on Tuesday, was informed that there won’t be a “complete” change in the Collegium System of selection of judges, rather the government desired a “participatory” role by involving the President and the Prime Minister in the process of judicial appointments.

The memorandum of the procedure, which governs the appointment of judges in the Supreme Court and high courts, was put in place succeeding two apex court judgments in the 1990s that established the collegium giving prevalence to the Chief Justice of India in making such appointments.

Both the Supreme Court and the government have a different position on National Judicial Appointments Commission (NJAC) and collegium system, making it a bone of contention between the two pillars of Indian democracy.

National Judicial Appointments Commission is a proposed body which would be responsible for the appointment and transfer of judges to the higher judiciary in India. It would recommend judges for the appointment for the post of the Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts.

It would also look after the transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. The body would, as it states, ensure the individual’s ability, merit and other criteria mentioned in the regulations related to the act.

Whereas in the Collegium System, the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend the appointments and transfers of judges. The system has evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998).

The biggest criticism put across by the government against collegium system is that it’s creating imperium within imperia in the Supreme Court. The system is also blamed for being a ‘give and take’ arrangement building a gap between the “haves” and the “have-nots”, which according to them is also the reason for the delay in justice delivered by them.

This internal cluster of negotiation to be in the bracket of “haves” can possibly be attributed to greed, corruption in high judicial collaboration, which can undesirably affect the interest of this country.

Though no structural reform can guarantee a change in personal deeds, but a stringent enforcement of a structured law can obligate people to improve their performances. In a democratic system of society, where the government works for the people, the aim should be of providing an unambiguous judicial system for the people to be happy and confident of the decisions taken by the authority.

The government should try to provide the same by bringing reforms to even the top most authority of constitutional watchdogs, and with NJAC, the government claims to target the same.

Nothing can be rectified without the prior knowledge of its prevalence, hence this opaque collegium system needs to be reviewed. The government might not be right in all its assertions on the collegium system but, with NJAC being implemented, the reality can come in the public domain. This will create a transparent atmosphere of work through which the civic society can develop a sense of empowerment and confidence in the judicial system of India.

Lastly, in the fast developing society of India, changes are bound to take place and there is no harm in trying innovative ways to achieve the ultimate motto of the betterment of our society. The collegium system was also an amended attempt to improve the previous ‘executive-controlled system’ and now, with the loopholes of the collegium system becoming apparent, India should not shy away from trying the new methods provided by National Judicial Appointments Commission.

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India Gets A Win, Supreme Court Decriminalizes Homosexuality

In December 2013, a Supreme Court bench said that it was for the legislature to look into desirability of deleting section 377 of IPC.

Homosexuality, India
SC decriminalises homosexuality, victory for gay rights. Pixabay

 In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

Homosexuality, India
LGBTIQ people have a right to live unshackled from the shadow.

“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

Homosexuality, India
In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay


In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

Homosexuality, India
People Participated in Hundreds for the Gay Pride Parade Held In Delhi.

The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

Homosexuality, India
Gaydo, India’s first LGBTQ Radio Show

Also Read: Gaydio: India’s First LGBTQ Radio Show Will Help People Understand Gender and Sexuality in a Better Manner

The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)