National Judicial Appointments Commission (NJAC) was a proposed body with the authority to appoint and transfer higher judiciary in India. But Supreme Court on October 16th struck down NJAC as an unconsititutional. And SC also upheld the Collegium system of appoinment of Judges (the system where judges are appointed on the basis of its own judgement cases called three judges cases). Abhishek Manu Singhvi, a Sr. Advocate,of Supreme Court and national spokesperson of Congress while expressing his personal views on the recent judgement of Supreme Court, on NJAC,in his article , in TOI date 19/10/2015 mentioned thus:"if an over thousand pages,collection of five judgements,,diligently researched , painstakingly written,bonafide believed in,assiduously dealing with every point urged written after comprehensive and detailed arguments forsaking court vacations, by five of our truly outstanding apex court judges,can still be legally and constitutionally,erroneous -- indeed, grievously wrong n its majority verdict--the NJAC verdict, is the best example"
In this connection at the out set, let me honestly admit that I'm,neither an advocate by profession, nor any legal expert, nor an affected person directly, but as student of political science and Public administration I'm trying express my views on it. Infact during 70s, during my PG we have been taught,"separation of powers between Legislature, Executive ,and Judiciary,in addition to Supreme Court,and High courts and in the annual exams, we used to get questions on these subjects, as such we were required to have an indepth knowledge to critically examine each issue. And this judgement and many articles being published in News papers, TV discussions, coupled with little indirect interest in the matter, prompted me to concentrate a bit on the issue.
Many of us know that the Supreme Court has struck down, the NJAC Act amendment bill passed by parliament and required number of state Legislatures which has resulted in clash of interest in Legislature and Judiciary. But every one, including the SC knows that the existing system of Collegium is not only faulty, but also bogged down by inefficiency, favouritism and nepotism and other vested interests. Infact I have little personal knowledge of High court of Hyderabad, even during United AP, the functioning of Collegium, we all are aware, how the entire panel recommended by the collegium had been scrapped by the SC, during the CM Kiran Kumar Reddy period, the Govt and HC, had to hang their heads in shame as several allegations had been levelled against many candidates .I'm also aware that a retired Supreme Court judge, brought pressure on one of the Collegium members, to have his nephew 's name included, ofcourse as I said the total panel was scrapped .
Till 1993 the judges were appointed by the Executive in consultation with Judiciary. In good times the consultation with Judiciary went beyond seeking opinion to attempt a consensus. However the judicial voice was neither dominant nor decisive. In bad times however, Govts, made,calls for " Committed Judiciary" and lot of times indulged in rank favouritism. This reminds me of Ramjeth Malani's famous remark "there are only two types of judges,those who know the law and those who know the Law Minister". It is in this backdrop in 1993 during Narasimha Rao's minority Govt, mandal, mandir with economic liberalisation, simultaneously boiling, that quiet a declaration of judicial independence occurred . In 1998 during Vajpayee Govt, on a Presidential reference, the Court defined the Collegium thus" In the opinion of CJ , of SC,of India. Has to be formed in consultation with collegium of judges.". Presently and for a long time, that collegium consists of two senior most judges of SC, the principal objective of the collegium is to ensure that the best available talent is brought to SC bench. The Judgement went on to increase the strength to 4 in the collegium while a separate collegium of 3 senior most judges were provided for High Courts
India is the only country in the world, where judges appoint judges.The whole country has been a witness to the collegium selecting some thoroughly discredited persons for the post of Supreme Court / High court judges. No other democracy will accept this farce, a set of judges producing a list of appointees selected through a non- participative, unscientific, utterly opaque and secretive process, and directing the President of India, to sign on the dotted lines. Contrary to what the supporters of this collegium system,claim, it is a non- system. The legendary VR Krishna Iyer, spoke in no uncertain terms, against this travesty. Justice is too serious matter to be left to only legal fraternity alone. Is it not a time to think of making the judicial process less legalistic and more justice oriented?
Let us be very clear that one of the principles of Natural Justice is that, no one shall be judge in his own cause. Is this principle not violated when this recent judgement was given on the constitutional validity of the NJAC as they were deciding on an issue in which they were an affected party? Similar is the case when parliamentarians decide on issues relating to their own salaries and allowances. Some checks and balances are required in a democratic system and no one should have unbridled powers to decide on issues relating to themselves .
With SC striking down the NJAC a fierce showdown between SC and Govt is imminent but the question to be asked is why there is an objection to Judges being appointed by the judiciary when politicians raise their own salaries .But when we analyse, some times, the issue in totality, it could hardly be a coincidence. In past six months, the major initiatives, MODI Sarkar seem to led into a gridlock by Team Modi. The virtual derailment of Land Acquisition Bill, Goods and Sevices Tax bill, the Aadhar based cash benefits program and NJAC Act, reflects a perplexing approach -- in instance the out come was predictive and even predictable.
Lastly I would not hesitate to say that the present collegium system in High Courts as I know it is totally defective, while making selections from the Bar or the Dist, courts as the merit and seniority is given last priority over many other extraneous considerations.It was however heartening that the apex court admitted gracefully that even the collegium system is faulty and invited suggestions for bettering the system .The Supreme Court being the custodian of the Fundamental Rights of the citizens, needs to be given complete independence .However as suggested there is a need to refine the collegium system making it more transparent and accountable
Many of us know that the Supreme Court has struck down, the NJAC Act amendment bill passed by parliament and required number of state Legislatures which has resulted in clash of interest in Legislature and Judiciary. But every one, including the SC knows that the existing system of Collegium is not only faulty, but also bogged down by inefficiency, favouritism and nepotism and other vested interests. Infact I have little personal knowledge of High court of Hyderabad, even during United AP, the functioning of Collegium, we all are aware, how the entire panel recommended by the collegium had been scrapped by the SC, during the CM Kiran Kumar Reddy period, the Govt and HC, had to hang their heads in shame as several allegations had been levelled against many candidates .I'm also aware that a retired Supreme Court judge, brought pressure on one of the Collegium members, to have his nephew 's name included, ofcourse as I said the total panel was scrapped .
Till 1993 the judges were appointed by the Executive in consultation with Judiciary. In good times the consultation with Judiciary went beyond seeking opinion to attempt a consensus. However the judicial voice was neither dominant nor decisive. In bad times however, Govts, made,calls for " Committed Judiciary" and lot of times indulged in rank favouritism. This reminds me of Ramjeth Malani's famous remark "there are only two types of judges,those who know the law and those who know the Law Minister". It is in this backdrop in 1993 during Narasimha Rao's minority Govt, mandal, mandir with economic liberalisation, simultaneously boiling, that quiet a declaration of judicial independence occurred . In 1998 during Vajpayee Govt, on a Presidential reference, the Court defined the Collegium thus" In the opinion of CJ , of SC,of India. Has to be formed in consultation with collegium of judges.". Presently and for a long time, that collegium consists of two senior most judges of SC, the principal objective of the collegium is to ensure that the best available talent is brought to SC bench. The Judgement went on to increase the strength to 4 in the collegium while a separate collegium of 3 senior most judges were provided for High Courts
India is the only country in the world, where judges appoint judges.The whole country has been a witness to the collegium selecting some thoroughly discredited persons for the post of Supreme Court / High court judges. No other democracy will accept this farce, a set of judges producing a list of appointees selected through a non- participative, unscientific, utterly opaque and secretive process, and directing the President of India, to sign on the dotted lines. Contrary to what the supporters of this collegium system,claim, it is a non- system. The legendary VR Krishna Iyer, spoke in no uncertain terms, against this travesty. Justice is too serious matter to be left to only legal fraternity alone. Is it not a time to think of making the judicial process less legalistic and more justice oriented?
Let us be very clear that one of the principles of Natural Justice is that, no one shall be judge in his own cause. Is this principle not violated when this recent judgement was given on the constitutional validity of the NJAC as they were deciding on an issue in which they were an affected party? Similar is the case when parliamentarians decide on issues relating to their own salaries and allowances. Some checks and balances are required in a democratic system and no one should have unbridled powers to decide on issues relating to themselves .
With SC striking down the NJAC a fierce showdown between SC and Govt is imminent but the question to be asked is why there is an objection to Judges being appointed by the judiciary when politicians raise their own salaries .But when we analyse, some times, the issue in totality, it could hardly be a coincidence. In past six months, the major initiatives, MODI Sarkar seem to led into a gridlock by Team Modi. The virtual derailment of Land Acquisition Bill, Goods and Sevices Tax bill, the Aadhar based cash benefits program and NJAC Act, reflects a perplexing approach -- in instance the out come was predictive and even predictable.
Lastly I would not hesitate to say that the present collegium system in High Courts as I know it is totally defective, while making selections from the Bar or the Dist, courts as the merit and seniority is given last priority over many other extraneous considerations.It was however heartening that the apex court admitted gracefully that even the collegium system is faulty and invited suggestions for bettering the system .The Supreme Court being the custodian of the Fundamental Rights of the citizens, needs to be given complete independence .However as suggested there is a need to refine the collegium system making it more transparent and accountable
