Monday December 16, 2019
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Supreme Court Vs Government: Is National Judicial Appointments Commission any better than the collegium?

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Judge

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

Governments Around The World are Learning to Confuse Dissidents on Social Media

The researchers, who published their findings in a recent issue of Political Science Research and Methods, specifically examined social media from both the Venezuela regime and its opposition

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Social Media
The regime also seemed to develop a more sophisticated approach to using hashtags on Social Media. The regime used long hashtags, as opposed to the shorter hashtags that are more commonly used, to promote distraction among the protest groups. Pixabay

Governments the world over are learning new tactics to quash dissent on various Social Media platforms, responding with tweets designed to distract and confuse like longer hashtags, according to a team of political scientists.

In a study of Twitter interactions during Venezuela’s 2014 protests, in which citizens voiced opposition to government leaders and called for improvements to their standard of living, the tweets of the protesters focused mainly on the protest itself, while the tweets issued by the ruling regime covered more diverse topics.

This could mean that regimes are growing more savvy in their use of social media to help suppress mass movements.

“When we started doing this study there had been a lot of optimism about the capacity of social media to produce revolutions throughout the world, like Arab Spring and the Color Revolutions in Europe,” said Kevin Munger, assistant professor of political science and social data analytics, Penn State.

“But it seems like, in hindsight, this was the result of short-term disequilibrium between the capacity of the masses to use this technology and the limited capacity of these elites to use it.”

A lot of these elites may have not been keeping up with modern communication technology and got caught unawares.

So, for that short period of time, social media did produce better outcomes for revolutions and mass movements.

The researchers, who published their findings in a recent issue of Political Science Research and Methods, specifically examined social media from both the Venezuela regime and its opposition.

Social Media
Governments the world over are learning new tactics to quash dissent on various Social Media platforms, responding with tweets designed to distract and confuse like longer hashtags, according to a team of political scientists. Pixabay

Following the death of Venezuelan President Hugo Chavez in early 2013, Nicolas Maduro, Chavez’s vice-president, won a special election.

After his election, mass protests erupted related to economic decline and increased crime.

In their analysis, the researchers noted that the regime abruptly shifted its Twitter strategy after protests swept across the country.

The topics of the regime’s tweets became even more diverse than usual — including such topics as a tree-planting event — and often did not address the protests at all.

As the protests continued, however, the researchers said that the opposition also became less focused, which the researchers suggest may have been a reaction to the regime’s social media strategy.

The way that attention works on social networks offers a glimpse into why the strategy to distract citizens might be effective, added Munger, who worked on the study while a doctoral student in politics at New York University.

Social Media
Regimes are growing more savvy in their use of Social Media to help suppress mass movements. Pixabay

“To have effective protests, you need to have a ton of people coordinated on a single message, so spreading other narratives disrupts that process of coordination,” said Munger.

“Being able to spread doubt is effective. You don’t have to get people to love your regime, you just need people to less convinced of the single narrative.”

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The regime also seemed to develop a more sophisticated approach to using hashtags. The regime used long hashtags, as opposed to the shorter hashtags that are more commonly used, to promote distraction among the protest groups. (IANS)