What NJAC verdict means for the common man
After the Supreme Court verdict on October 16 on the National Judicial Appointments Commission (NJAC), when the apex court of the country struck down the proposed change in the system of appointment and transfer of judges by calling it "unconstitutional and void", which was approved by Parliament, the topic was out in the open for passionate debate. Decibel levels on prime time rose, social media feeds poured, columns in newspapers and portals appeared.
Having followed the NJAC case since some time with interest and having read legal and constitutional luminaries like Pratap Bhanu Mehta (in the Indian Express), Prashant Bhusan (in The Wire), Minhaz Merchant (in DailyO), R Jagannathan (in FirstPost) and a few other commentaries post yesterday's verdict, I asked a colleague about his opinion on the contentions on "eminent persons" raised by the Supreme Court. "I don't understand the technical mumbo jumbo, I think politicians interfering in judiciary is the last thing India will want," came the reply.
Therein lies the rub. But before delving into that let us try to understand from a layman's point of view what the whole debate is about.
How does someone become a Supreme Court judge? By an appointment made by the President of India after the recommendation is forwarded by the chief justice of India and four of his senior colleagues in what is called a collegium system. They consider candidates, study their ability based on various parameters, and make appointments. So, what is the problem there? The problem is that no one, but for the collegium knows how the names of the candidates come about, what the parameters of selection are and how the decision of selection is arrived at. This system adopted in 1993 is being claimed to produce judges who are incompetent and are mired in corruption of various hues.
But why did this system, which was not mentioned in our Constitution, come about? To answer that, let us consider the function of the judiciary in a democracy. The judiciary is an important institution of checks and balances against the misuse of the institutions of democracy by the political executive. The quality of the judiciary depends on its efficiency and integrity. The judiciary is meant, in the design of things, to step in in case of constitutional transgression. Examining the validity of laws passed by the legislature, maintenance of fundamental rights and examining the legality of executive action, if it is contrary to that of the legislature, falls under the purview of judiciary.
Politicians have always tried to control this arm of democracy, and for obvious reasons. With situations of "committed judiciary" or transfers, which were politically motivated, it was upon the judiciary to maintain its "independence" and in the process, it formulated a design of selection of judges insulated from the legislature or the executive.
But then the other two arms stretched themselves and formulated the NJAC and passed it with great unanimity in Parliament. The NJAC, among other things, had a provision where the panel selecting the judge would comprise the law minister of the country and two other "eminent persons" selected by the CJI, the prime minister and leader of opposition with the other three being Supreme Court judges. This particularly did not go down well with the five-judge bench that heard the case. The presence of the first three brings the legislature and executive to the selection table and compromises the independence of the judiciary as mandated by the Constitution. The bench struck down the NJAC by a majority of 4-1.
So what does the verdict mean for the common man? In a country plagued by rampant corruption, inefficient lawmakers, and social evils that are still prevalent, the Supreme Court appears as a saviour. What in academic circles can be discussed as "judicial overreach" or "judicial activism" is perceived by the common man as rightful interference. Be it the Jessica Lal murder case, racial abuse of Indian students in Australia, the Bhopal gas tragedy, 2G licence case, environmental issues, and so on, the activism of the Supreme Court has only been greatly appreciated by people at large. It is actually the vacuum created by the legislature and executive which the judiciary has filled in. It is in that light that any attempt by the political class to interfere in the judiciary will be negatively seen in popular perception.
It is not that the public is not suspicious of the men delivering justice, given the increasing spate of revelations of corruption against them. The prevalent process of selection of judges has ensured that mediocre members have made their ways to the premier justice system. The rot is deeper in the lower judiciary where one will hear of numerous tales of rampant corruption, political "management" and nepotism. But when it comes to comparing the arms of democracy, the trust in the judiciary is perhaps more than that on others.
For now, the Supreme Court has kept the executive at arm's length by virtue of yesterday's landmark judgment. But the onus is now on it to come out clean by establishing necessary amendments in its own house. Only then shall it continue to enjoy the faith the public reposes in it.