Saturday December 15, 2018
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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.

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Willing To Shut Government Over Wall Funding: Trump

The House Republicans have always wanted to secure the border, the House Republicans have been passing bills to secure our border.

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Government
U.S. Border Patrol officers on horseback watch President Donald Trump (not pictured) review border wall prototypes in San Diego. VOA

U.S. President Donald Trump says he would “totally be willing” to partially shut down the government next week if he does not get more funding for a wall along the U.S.-Mexican border to thwart Central American migrants from entering the country.

The U.S. leader, who almost daily unleashes verbal attacks on migrants trying to cross into the United States, told the Politico news site he is insisting that $5 billion for wall construction be included in measures Congress needs to approve to keep several federal agencies open after their current spending authority expires December 7.

Opposition Democrats have said they will approve $1.6 billion for the wall, leaving the two sides far apart. Some Republicans are also opposed to Trump’s wall, which he vowed in his 2016 presidential campaign would be paid for by Mexico, although he now wants U.S. taxpayers to foot the bill.

 

Trump, Government
President Donald Trump listens to a question as he speaks to members of the media on the South Lawn of the White House in Washington. VOA

“I am firm,” Trump said of his $5 billion demand.

“I don’t do anything … just for political gain,” Trump said. “But I will tell you, politically speaking, that issue is a total winner. People look at the border, they look at the rush to the police, they look at the rock throwers and really hurting three people, three very brave border patrol folks. I think that it’s a tremendous issue, but much more importantly, is really needed. So, we have to have border security.”

Trump was referencing a Sunday confrontation at the border in which migrants hurled rocks at U.S. Border Patrol officers, with agents repelling the crowd with blasts of tear gas. Rodney Scott, the chief Border Patrol agent in San Diego, California, just north of the Mexican border, said agents were not seriously injured.

“Their shields and their bulletproof vests actually protected them from the rocks,” he said. “We did have a few vehicles that were damaged, some windows and quite a few dents, but none of the agents were seriously injured.”

Donald Trump, democrats, government
U.S. President Donald Trump acknowledges supporters as he arrives for a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Indiana. VOA

Even as Trump voiced his determination to win congressional approval for the $5 billion in initial funding for a wall estimated to cost more than $20 billion, he told The Washington Post in a separate interview that he could find other ways to build the wall or add more security along the border.

“I think that’s been shown better than ever in the last short period of two weeks that we need a wall,” Trump told the newspaper. “I see the Democrats are going to want to do something, because they understand, too. Those pictures are very bad for the Democrats. We’re not having a wall because of the Democrats. We need Democrat votes to have a wall.”

“Now, if we don’t get it, will I get it done another way? I might get it done another way,” he declared. “There are other potential ways that I can do it. You saw what we did with the military, just coming in with the barbed wire and the fencing, and various other things.”

Trump, Government
House Speaker Paul Ryan of Wisconsin returns to Capitol Hill following a meeting with President Donald Trump at the White House. VOA

House Speaker Paul Ryan, leader of the current majority Republican bloc in the House of Representatives, told reporters Wednesday that after the nationwide congressional elections in early November, “hopefully … Democrats realize that a secure border should not be a Republican thing, it shouldn’t be a Democrat thing, it’s just good for the country. To actually secure our border. The House is there. We hope the Senate comes with us.”

Also Read: USA Finally Votes On Tuesday To Render Decision On Trump

He added, “Turn on the TV, you can see we have a problem at the border. So, we want to secure our border. The House Republicans have always wanted to secure the border, the House Republicans have been passing bills to secure our border, and I’d like to think that Democrats would also want to join us in securing the border, especially after the election.” (VOA)