Tuesday, October 20, 2015

Does the National Judicial Appointments Commission Act (NJAC) compromise judicial autonomy?

In the past several days, away from the political cacophony, India has found itself embroiled in a rare and profound controversy – over one of the fundamental questions around its constitution and its basic democratic doctrines – that of balance of powers between the legislature, the executive and the judiciary. Even more interesting and unusual is the fact that the issue has been discussed widely at a popular level on the TV channels.

Earlier in 2014, the present government at the centre managed to have the parliament unanimously accept its formulation of the National Judicial Appointments Commission (NJAC) Act. The act aimed at putting an end to what is called the ‘collegium’ system whereby a body of the Supreme Court judges takes decisions over own appointments as well as that in the country’s High Courts. But in a recent judgement last week the Indian Supreme Court decided that the NJAC act was ‘unconstitutional’ in that it violated the principles of judicial autonomy. 

On the other hand the collegium system has no sanction in the Indian constitution and is no more than a convention. The convention is however based on a Supreme Court ruling in 1993 when the bench ‘ruled that the Chief Justice of India must have a “primal” role in the appointments of judges and that the executive could not have an equal say, or else it could lead to “indiscipline” in the judiciary. Those critical of the collegium system allege that it suffers from lack of transparency and has also led to favouritism in appointments resulting in a decline of talent in the courts. The sharpest criticism came from the Finance Minister Arun Jaitley who termed the Supreme Court’s decision as the ‘tyranny of the unelected’. Jaitley in turn was attacked by the Congress wary as it is of the likely ‘tyranny of the elected’ for being disrespectful of the courts. 

The argument given by the Congress is substantial despite the clear partisan tone – it claims ‘Judges are no doubt unelected but they swear allegiance to the Constitution. Their special function is to do justice between individuals, between collectivities and between the citizen and the state in a free and fair manner. A political party in contrast is free to pursue its political agenda, Judges, on the other hand, are not bound by the political agenda of a majority government, nor by the laws that reflect that agenda, but only by the duty to protect the fundamental rights of the people where each counts for one.’ No wonder the Congress which supported the act an earlier stage has changed its mind and claims that with the new government trying to compromise the autonomy of several institutions, the collegium system may be just fine at least for the time being. 

We thus have a deadlock over the issue even though the Supreme Court is willing to reform the collegium system to some extent and make it more transparent. The constitutional experts seem to be equally divided over the issue between two main positions – ones who take a purely constitutionalist-juridical view and claim that the collegium has no basis in our constitution and that it is for the president [read the parliament] to appoint judges after consultation. Those more sensitive to the changing political climate interpret things differently and are more concerned with protecting the judiciary’s autonomy from a parliamentary majority whose intent is suspect. 

This article titled ‘Government versus judiciary: A flashback on the face-off sparked by the ongoing judicial appointments debate’ presents a coherent background with explanations and implications of various positions despite sounding favourable towards a specific stance. 

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