I am no legal expert. But my lay man’s knowledge and common sense tells me, something is not right about the striking down of NJAC Act by Supreme Court and favouring the current collegium system of selection of judges. Whatever could be the argument technically in favour of the decision, including the political meddling in NJAC as being attributed by SC in their judgement, the very fact that Judges can select and appoint Judges all by themselves, is creating an elite club among one of the important pillars of democracy.
To start with, Collegium system is a Judiciary initiated recent development that is not more than two decades old, hence obviously could not be said as to have constitutional validity or approval. Moreover, NJAC had complete almost 100% support from both LS and RS members (except from Ram Jethmalani, for obvious reasons and a few others maybe), so bypassing Parliament and Legislature to continue with a system they have created themselves, does not seem to reflect democratic principle as this is not about selection or appointment into Bar Council or a select club.
Judiciary is a very important pillar of democracy. Like Legislature and Executive, the primary purpose of Judiciary is to serve the Constitution and the will of the people in a democracy. Therefore overlooking that aspect, does not bode well purely from a democratic principle. If they had an objection to the veto system in NJAC, they could have very well suggested some amendments to address their concerns rather than completely strike it down and continuing with their “self appointment” system that even some of the Judges in the bench who ruled this yesterday observed as not completely perfect.
What was ironic about it was the observation that, Modi Government may not appoint a “gay judge” given their ideological position. Is that even an argument? For one, it was the same SC that struck down the Delhi Hight court decision to scrap Section 377 of IPC, that considers “unnatural sex” among homosexuals as a crime, a couple of years back. And now the same Court is “fearing” Modi Government may not appoint Gay Judges! Can a court make such an observation to give a ruling that has long lasting effect based on what it considers as ideological position on a social issue by one party that is in power now? What if tomorrow BJP is not in power? Will they reconsider their decision then? How can NJAC appoint those who are favoured by BJP, when there are three Judges including CJI in the panel and two eminent persons other than the Law Minister (who is the only member from the Executive). Also, for Sec 377, the SC ruled a legislature review before scrapping it and hence passing the buck to Parliament, yet for their own appointment, why not a legislature review? Does it not amount to double standards and a conflict of interest case?
Nowhere in the world in any democracy, Judges appoint Judges, no matter how independent the Judiciary is. It is the Parliament, Senate, President, or a Committee that selects Judges, not their own exclusive panel. That would only encourage favouritism, nepotism and quid-pro-quo among legal fraternity. When there are enough corrupt judges in the system, it does not guarantee a “compromise-free” selection and appointment. Hence the Parliament and all political parties should together stand against this move and take appropriate action to address this matter.
Congress party that voted for NJAC is now trying to take political mileage out of this issue by saying this reflects that Judiciary has no faith in this Government. Whereas the reality is the Collegium system was created because of the constant interference from Congress party in appointment right from Emergency time. Instead of trying to politicise the issue, they should now join hands with BJP and other parties to bring NJAC, if required in an amended form, back. That is the need of the hour. Perhaps, BJP should also take a lesson or two from this, that no matter how good your intent is, when you try to implement something, it is better to take all along than deal with it in an “on your face” slamming style. Had they taken an approach of building consensus among key opinion makers in legal fraternity, perhaps more debates on this could have happened within their own circles as opposed to now most of them being against NJAC.
If Judiciary aims to serve the people, it should also listen to the will of people.
