Wednesday October 23, 2019
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Supreme Court Vs Government: Is National Judicial Appointments Commission any better than the collegium?



By Harshmeet Singh

The Indian constitution is a unique study in itself. Some of the most unique features of the world’s longest written constitution include the independence of the three pillars of the Indian democracy – legislature, judiciary and the executive. The controversial NJAC (National Judicial Appointments Commission) Amendment Bill is being seen by many as an attempt from the legislature to encroach the turf of the judiciary and snatch its independence. If the recent events are any indication, the judiciary seems in no mood to let go of its rights.

NJAC – What and Why?

Till now, the appointment and transfer of judges to the higher judiciary (Supreme Court and High Courts) was done by a collegium consisting of the Chief Justice of India and the four senior most judges of the Supreme Court. The system of ‘judges appointing judges’ has been in existence for close to 22 years. According to the Government, this system was giving rise to nepotism and ‘favors’.

To overhaul the process of judges’ appointment, the Government has introduced the National Judicial Appointments Commission. The NJAC would be headed by the Chief Justice of India and would have two senior most SC judges, the Law Minister and two ‘eminent persons’ as its other members. These two eminent persons will be appointed by a committee comprising of the Prime Minister, the CJI and the leader of the Opposition. With only 3 of the six NJAC members belonging to the judiciary, this system tries to take away the controlling powers of the judiciary over the appointment of its fellow judges.

What’s the trouble then?

Our constitution makers, perhaps, had the foresight to visualize today’s Government’s love for uncontrolled power. Thus the constitution provides the power of ‘judicial review’ to the Supreme Court. According to this, the apex court can strike down any law if it tries to change the ‘basic structure’ of the constitution or, if the law isn’t in conformity with the constitution itself.

The validity of the 99th Constitutional amendment Act 2014 and the National Judicial Appointments Commission Act have been challenged in the Supreme Court. Bishwajit Bhattacharyya, a former Additional Solicitor General of India, filed a PIL in the Supreme Court in January this year, terming the NJAC as ‘direct attack on the independence of judiciary’. In his petition, the former ASG said, “The NJAC Act and amendment of the Constitution are unconstitutional and violate the basic structure of India’s Constitution, as various clauses stipulated therein make a frontal attack on the independence of the judiciary as also on the doctrine of separation of powers,” Since then, the matter is in the Supreme Court and the formation of NJAC is still pending.

Close to five months into the hearing of PIL, no side is ready to put the guard down. Last week, the honourable Supreme Court termed the act as ‘unworkable’. The Government, on the other hand, responded by reminding the Supreme Court that since the President has already signed on the bill, the collegium system stands scrapped. Now, if the Supreme Court terms the act as ‘void’, there would neither be a collegium nor any NJAC! While the proceedings go on in the court, Supreme Court has tried to justify the collegium system, saying that it has “limited but sufficient transparency”. The Supreme Court, in fact, has asked the Government to furnish details about the persons with “doubtful integrity” that have been appointed by the collegium in the past.

The constitutional bench, comprising of 5 judges, said, “It (collegium) is not a closed door system, but to throw it open to all and sundry would invite a lot of representations. It still cannot be said that it is not transparent. Just because there have been mistakes here and there does not mean the system is inconsistent or bad.”

The Chief Justice, H L Dattu, has also declined to be a part of the committee which would appoint two ‘eminent persons’  as members of the NJAC, citing that the constitutional validity of the NJAC is still in question. While the Supreme Court is trying to convince the government to turn back to the collegium system, the fact remains that a number of provisions in the NJAC act violate the constitution in their present form.

Eminent persons – Who? How?

The act fails to prescribe any specific procedure or qualification requirements for the appointment of two ‘eminent persons’. While the existence of NJAC itself is based on efforts to do away with the arbitration of judicial appointments by the collegium, the arbitrariness in the appointment of these two members of the NJAC is extremely glaring. These appointments are left to the discretion of the Prime Minister, CJI and the leader of the opposition.

Is the role of executive in judiciary justified?

According to the numbers furnished by the National Litigation Policy of 2010, there are close to 3 crore cases pending in the country. In more than 70% of these cases, the Government is one of the parties involved. In such a scenario, how advisable would it be to give the executive and legislative a say in the appointment of judges to the highest court in the land?

Veto power

One of the provisions in the act says that any two members of the NJAC can veto any appointment. This, again, is an arbitrary provision in the act with no specific directions. The veto powers can be exercised by any two members without any criteria. Such provisions, in fact, go against the democratic values of the country. This provision implies that for any appointment, at least five of the total six members would have to give their consent. So, in other words, there must be an 83.33% majority for any appointment to go through. This number is even higher than the majority needed in the Parliament (67%) for passing critical laws.

The Government seems to be resorting to every trick in the book to get this act through to the National gazette. But it must understand that if the collegium system was arbitrary, the NJAC doesn’t seem to have finely polished corners either.

Next Story

Government to Appoint Chief of Defence Staff to Consolidate Defence Might of Country

The decisions on issues of war and peace deserved to be taken through an arrangement that brought the voice of the defence chiefs directly

Government, Defence, Staff
A helpful factor in the implementation of the CDS idea is the successful working of the Chiefs of Staff Committee over years with a rotational chairmanship that produced a tradition of consensual thinking on defence and security -- I saw this during my association with COSC. Pixabay

The announcement by the Prime Minister from the ramparts of the Red Fort on August 15 that the government had decided to appoint a Chief of Defence Staff (CDS) to consolidate the defence might of the country, is in tune with the Modi regime’s consistent effort to build India as a world power that would play a meaningful role in both economic development and security at the global level.

It addresses the logical requirement of bringing defence forces and the nuclear, cyber and space domains under one umbrella of strategic planning, takes forward the concept of integrated combat on land, air and sea in today’s world — which, for India, is extremely important considering the hostile Sino-Pak military alliance against us — and makes way for a new level of coordination that would achieve speedy, cost effective and futuristic defence acquisitions, manpower development and strategic deployment.

A helpful factor in the implementation of the CDS idea is the successful working of the Chiefs of Staff Committee over years with a rotational chairmanship that produced a tradition of consensual thinking on defence and security — I saw this during my association with COSC as JIC Chairman. The decisions on issues of war and peace deserved to be taken through an arrangement that brought the voice of the defence chiefs directly to the political executive governing the sovereign nation. The Prime Minister has in his rule constantly worked for elimination of red tape, speedy decision-making and coordinated execution of projects and schemes that had been announced.

Taking into account the security challenges for India, it is easy to envisage the role of the Army as the pivot of our defence responses with the air force rendering it tactical support and the navy ensuring a strategic backing in the event of a war-like conflict developing outside of our shores. CDS will steer the Strategic Command while using the combined wisdom of our defence chiefs in handling the various theatres of war. The new step will prove extremely rewarding in terms of the rapid consolidation of our defence potential that it will ensure the old world prejudices earlier voiced by bureaucracy do not hold any more.

Government, Defence, Staff
It addresses the logical requirement of bringing defence forces and the nuclear, cyber and space domains under one umbrella of strategic planning, takes forward the concept of integrated combat on land, air and sea. Pixabay

Post Cold War, the world has transited to an era of proxy wars, cross-border conflicts and insurgencies instigated by assertion of sub national identity. Terrorism is the new instrument of proxy war as the covert offensives are replacing open warfare. National governments are having to fight the adversaries on their own soil — this is bringing in the Army to take on cross-border terrorists operating at the behest of the external enemy. India is the prime example of a country facing a proxy war unleashed by the hostile neighbour — Pakistan — through the heavily armed Mujahideen infiltrated from across the border specially in Kashmir.

For combating this Kashmir Jehad, India has had to induct the Army which, in turn, had to specially train the troops to take on the terrorists on our home ground. The army is attuned to facing a visible enemy and using the maximum force. The rise of terrorism was a challenge for it for the reason that the terrorists could spring from their hideouts existing in the midst of the civilian population and yet the army had to put them down with restraint as the counter-terror operation had to ensure minimal collateral damage.

CDS will have on his hands the work of preparing India for dealing with an external enemy, strategising for proxy wars and raising special forces to take on terrorists on our own soil. An attack like 26/11 — there are Intelligence reports about a further terror offensive from the sea — would need involvement of Navy and Coast Guard just as further surgical strikes across our borders to destroy the base camps of terrorists needed joint planning of army and air force for readying paratroopers.

Mountain warfare, of which Kargil proved to be the first testing ground, is now a part of India’s strategic planning resting on the use of both the army and air force. Defence of Indian Ocean and security of the Indo-Pacific maritime region are new elements in the charter of India’s CDS. Coordination between civilian Intelligence agencies and the chief of Defence Intelligence would achieve greater perfection under the CDS. The structural and operational consolidation for maximising India’s defence and security potential is therefore not coming a day too soon.

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Multiple writings on the proposed CDS from defence experts have focused on three imperatives of the new experiment in the Indian context — first, whether CDS will be the boss of the defence forces with five stars, secondly, will the new chief be totally impartial in dealing with the army, air force and navy and, lastly, if on issues of war the CDS will have his way with the political leadership? The answer is that even with four stars, CDS will be the principal interlocutor with the national government on all issues of defence development and organisation, that the chiefs of staff experiment had worked for long years creating a grid of understanding amongst the three services and that CDS would be like an elevated Chairman of the Chiefs of Staff Committee.

Both Defence Planning Committee and the National Security Council provide the CDS with an interface with the Prime Minister. And finally, in regard to decision-making in a war-like situation, the vital thing is that the input from CDS is fully weighed in even though the decision would lay with the political executive exercising the sovereign power of the democratic nation. On the whole, there is a case for early implementation of the CDS idea to strengthen our defence. (IANS)