oppn parties Judges Get it Wrong in NJAC Case

News Snippets

  • In reply to a question in Parliament, the government says it is empowered to lawfully intercept, monitor or decrpyt information stored in a computer resource in the interest of sovereignty or integrity of India
  • Police stop a 12-year old girl on her way to the Sabarimala shrine
  • In Karnataka, the JD(S) indicates that it might support the BJP government if it falls short of numbers after the bypolls
  • Congress pips the BJP in local body elections in Rajasthan, winning 961 wards to the BJPs 737
  • After Airtel and Vodafone-Idea, Jio also indicates that tariffs will be raised from December
  • Sources in Shiv Sena say that they might revive the alliance with the BJP if it offers the 50:50 deal
  • A miffed Sanjay Rout of the Shiv Sena says that it will take "100 births" to understand Sharad Pawar
  • Mobile operators Vodafone-Idea and Airtel decide to raise tariffs from next month
  • Sharad Pawar meets Sonia Gandhi and says more time needed for government formation in Maharashtra
  • Justice S A Bobde sworn in as the 47th Chief Justice of India
  • Supreme Court holds hotels liable for theft of vehicle from their parking area if parked by valet, says "owner's risk" clause is not a shield from such liability
  • Finance Minister says she is receiving feedback from many sectors that recovery is happening as there is lower stress
  • Sabarimala temple opens, but police bar the entry of women below 50 years
  • Finance Minister Nirmala Sitharaman says Air India and BPCL to be sold off by March
  • Media person Rajat Sharma resigns as DDCA president
Two Muslim litigants in Ayodhya refuse to accept the Supreme Court order, say review petition might be filed
oppn parties
Judges Get it Wrong in NJAC Case

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.
Is the process of judges deciding on appointment of new judges fair and is anything that takes this away an encroachment on the independence of the judiciary? While the recent judgment of a five judge bench of the Supreme Court in the NJAC case would make it seem that way, it is not the case. On the contrary, the very striking down of the NJAC Act is a decision that seems to convey the message that in matters where the judiciary is concerned, the parliament has no, or little, authority to enact laws as the judges would strike them down on smallest of excuses.

The makers of the Indian Constitution had deemed that the appointment of judges would be done by the executive in consultation with the judiciary. That arrangement worked fine for forty long years till the time came when an overbearing government titled the scale in favour of the executive with the help of a pliant judiciary. Then, glaring examples of favouritism and nepotism were pointed out in the system. That gave birth to the collegium system where only the judges were mandated to select new judges for appointment. Although this system has been working for the last two decades, it is far from perfect. It is opaque and there is no denying that favouritism and nepotism can also creep into this system. Also, with the number of vacancies in high courts all over the country, it also seems that the judges are either not finding time or not finding suitable candidates to fill them. This is hampering the judiciary and cases are piling up. One recent study estimated that it would take 48 years just to hear all the pending cases, let alone the new ones that would be filed in that period. It is really a sorry state of affairs.

If the executive decides that the current system needs an overhaul and the parliament, along with the assemblies of an overwhelming majority of the states support it, how can the NJAC Act be “unconstitutional” and an encroachment on the independence of the judiciary? For, the basic thing to understand here is that in the original Constitution, there was no provision for the judiciary to decide upon judge appointment in isolation. That job was given to the executive, which was enjoined to do so in consultation with the judiciary. Hence, if the judges now say that only they will select judges and cast all sorts of aspersions on the executive or the two eminent persons who would be a part of the NJAC, they are being short-sighted and their only motive would seem to be to protect their turf. The judiciary has to understand that despite the Constitution giving it powers to appoint judges in consultation with the judiciary, the executive had initiated the collegium system to give that power to the judges. Now if the executive, through an Act of parliament, wants to broad-base this selection process, ideally there should be no objection and the NJAC should be given a fair chance. But if the judges now want to appropriate this power solely for themselves, they are being unjust and trampling upon the spirit of the Constitution.