Friday November 24, 2017
Home Opinion Supreme Court...

Supreme Court Vs Government: Is National Judicial Appointments Commission any better than the collegium?

0
352

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

Undaunted Initiative by tribal women for forest preservation in Muturkham, Jharkhand

Muturkhum forest saved from deforestation and exploitation under Timber mafia due to collective efforts of tribal women

0
36
forest under the threat o deforestation in Muthurkam saved by tribal women. pexeby

8th Nov, 2017, Jharkhand:Armed with just water bottles and sticks, a group of poor tribal women in Muturkham village of Purbi Singhbhum district of Jharkhandtrekked miles to the sal forest that surrounded their habitat. Their mission: To save the forest from being plundered and denuded by the “forest mafia”.

Accompanied by just a dog for their safety, these determined women made frequent forays into the deep forest — with which they shared a symbiotic relationship — and have been able, over the years, to successfully conserve 50 hectares of forest land and its flora and fauna deep in the heart of a territory that has also been a battle zone between government forces and left-wing extremists.

This group was brought together by Jamuna Tudu, 37, who has spent the last two decades of her life fighting against deforestation. It was in 1998, after her marriage, that Jamuna took up this challenge of preserving the forest by making villagers develop a stake in it.

 

orest saved from deforestation by tribal women in Muturkham. pexeby

Today, her Van Suraksha Samiti (Forest Protection Group) has about 60 active women members who patrol the jungle in shifts thrice a day: Morning, noon and evening. And sometimes even at night, as the mafia set fire to the forests in random acts of vandalism and vengeance.

Jamuna’s fight has not gone unnoticed. The President of India has honoured her conservation efforts.

“Few days after my marriage, when my mother-in-law, sister-in-law and a few other women from the village took me to the forest to cut wood and get it to cook food, I felt that if we keep cutting the trees this way, all our forests will be wiped out,” Jamuna recalled to IANS in an interview.

In her quest, she had to battle against the mafia that was chopping down trees for their precious sal timber with complete disregard for the law or the tribal tradition that prohibits cutting of the trees.

Realising that she would get little help from authorities, who may well have been hand in glove with the mafia, she took matters in her own hands. She spoke to a few women of the village who were quite aghast at the task she had taken on. We won’t do it; this will require us to fight the men in the village, they told her.

But Jamuna, who has studied up to Class X, foresaw a bleak green-less future for herself and her community with no trees and forests to sustain or protect them.

‘Jungle nahi rahega toh paryavaran kaise bachega (how will we protect the environment if the forest is destroyed)?’ she asked.

Jamuna’s clear understanding of the issue soon trickled down to the other women and even men in her village.

“I was brought up with a love and respect for nature. My father used to plant numerous trees in our farms in Odisha. That’s where I learnt the importance of the environment,” she said.

Pointing out how the mafia was exploiting the wood from Muturkham to fund their alcohol needs, she said she was bewildered by the passive response of the community at their habitat being slowly destroyed.

“I went on to speak to a few women in the village. I held a meeting with them several times to be able to convince them that we needed to protect our beautiful forests,” she said.

Gradually, she mobilised a group of 25 women from the village and armed them with bows and arrows, bamboo sticks and spears, they marched into the forest to take on the forest predators.

With time, many men also became part of the campaign against deforestation, but most of the effort has continued to be from women, said Jamuna.

There are many daunting challenges that came their way, but their single-minded dedication towards their cause kept them going.

“There were too many altercations with the village people initially.. many scuffles with the mafia… and I told those women that in this journey, we would come across both good and bad times, but we have to struggle to keep the forest,” said Jamuna.

The group convinced the railway authorities to bar the plundered wood from being exported.

“Some time in 2008-09, we were brutally attacked by the mafia,” she said.

“They pelted stones at us while we were coming back from the railway station after speaking to the station master. Everybody got injured,” she added.

For obvious reasons, Jamuna, the woman whose initiatives were hampering their business, was their main target. She and her husband suffered most in the assault.

“My husband got hit on his head as he tried to save me. It was dark and we somehow managed to run away. We narrowly escaped death that day.” But she did not give up.

Over 15 years of many fierce encounters with the mafia and relentless sensitisation of the community, Jamuna, and the Van Suraksha Samiti that she formed, have succeeded in protecting and conserving the 50 hectares of forest land not just surrounding her village, but around many others as well.

Tribal communities cannot survive without wood. They need it for various things — mostly to cook food. But they ensure that their requirements remain within sustainable limits.

“We don’t cut trees on purpose any more and use the fallen trees and branches for all our needs,” Jamuna said. “The amount we are able to save up during the rains is sufficient for the whole year.”

The Forest Department has “adopted” her village, which has led to Muturkham getting a water connection and a school.

In 2013, Jamuna was conferred with the Godfrey Phillips Bravery Award in the ‘Acts of Social Courage’ category and this year in August, she was awarded with Women Transforming India Award by the NITI Aayog.

Today, she runs awareness campaigns through various forest committees in Kolhan Division. Around 150 committees formed by Jamuna, comprising more than 6,000 members, have joined her movement to save the forests.

She wants to do a lot more. “I wish to do a lot… to make a lot more difference, but I am bound by limited resources. I can’t in many ways afford to go beyond the villages in my state.”

But if I get more support, many more forests like ours can be saved, she declared.

(This feature is part of a special series that seeks to bring unique and extraordinary stories of ordinary people, groups and communities from across a diverse, plural and inclusive India, and has been made possible by a collaboration between IANS and the Frank Islam Foundation. Mudita Girotra can be contacted at mudita.g@ians.in)

 

Next Story

Love Jihad Case : Kerala’s State Women Commission Directs SP to submit report on Hadiya’s Condition

24 year old Akhila had converted to Islam and taken the name Hadiya to marry Shafin Jahan.  However, their marriage was declared null and void by the High Court of Kerala

0
29
Office of Kerala Women Comission
Office of Kerala Women Comission. Official Website KWC

Kerala, October 28, 2017 : A day after a video of Hadiya pleading to be ‘saved’ from her father’s brutalities was released, Kerala’s State Women Commission has directed Kottayam Superintendent of Police to inquire and submit a report on Hadiya’s present conditions.

In the video release at a press conference in Kochi by social activist Rahul Eashwar, Hadiya can be heard saying, “You have to get me out. I am sure I will be killed tomorrow or the day after.” Hadiya claims that her father is physically assaulting her and pleads to be saved in the video before her voice trails away.

The direction came following reports that Hadiya is being sedated and physically abused at her parents’ house.

The State Women Commission has told the SP that an officer not less than the rank of a DSP should conduct the inquiry and submit a report on the condition of the 24-year old woman in love jihad case.

24 year old Akhila had converted to Islam and taken the name Hadiya to marry Shafin Jahan.  Their marriage was declared null and void by the High Court of Kerala after Hadiya’s father Ashokan has approached the court, claiming that his daughter had been forcefully converted and her alleged husband was involved in plans to take her out of the country for questionable reasons.

Consequently, Hadiya’s husband Shafin Jahan had approached the Supreme Court and challenged the order by the High Court of Kerala, which is still hearing the case.

– prepared by Soha Kala of NewsGram. Twitter @SohaKala

Next Story

Gorkhaland: SC allows withdrawl of Central Forces from Darjeeling

0
10
The Supreme Court of India
The Supreme Court of India. Wikimedia

New Delhi, October 27: The Supreme Court on Friday allowed the Centre to withdraw seven companies of central paramilitary forces from trouble-torn Darjeeling and Kalimpong districts of West Bengal where the agitation for Gorkhaland, a separate state for Gorkhas took a violent turn.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud directed the Centre to withdraw the seven companies of Central Armed Paramilitary Forces (CAPF) for being used for election duties in Himachal Pradesh and Gujarat.

The bench also sought a response from the West Bengal government on the Centre’s appeal against the High Court’s order putting on hold its decision to withdraw 10 of the 15 companies of the central paramilitary forces deployed in the hill district.

The apex court also stayed the pending proceedings before the High Court and said that it will deal with the case in a holistic manner and posted the appeal of the Centre for further hearing on November 27.

In an interim order, the High Court had stayed the withdrawal of CAPF from the Darjeeling hills till October 27 after the state government approached it against the Centre’s decision.(IANS)