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Why the NJAC Case Is Critical For India's Future

21/07/2015 8:11 AM IST | Updated 15/07/2016 8:25 AM IST
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A security personel walks in front of the Indian Supreme court in New Delhi on August 27, 2014. India's top court said lawmakers with criminal backgrounds should not serve in government, with 13 ministers facing charges for attempted murder, rioting and other offences. The ruling is likely to put pressure on right-wing Prime Minister Narendra Modi, who swept to power this year pledging clean governance. AFP PHOTO/ SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

The arguments on the National Judicial Appointments Commission (NJAC) case concluded earlier last week, after nearly three months of hearings before a five-judge bench headed by Justice JS Khehar. There was no doubt among lawyers that, during the NJAC arguments, Courtroom Number 4 was the most crowded place in Lutyens Delhi. Law students, like me, hustled for an empty spot just to be able to hear some of the best legal minds in the country delve in to the nuances of the Constitution, like never before.

The massive interest in this case stems from its potential to shake the foundations of our judicial system. In other words, if the NJAC is held to be constitutionally valid, the country will adopt a new procedure of appointing judges. The current system of judicial "collegiums" -- which includes senior-most judges of the Supreme Court and High Court -- would be discontinued. In its place, we would witness a new body (the NJAC) consisting of three judges, two eminent persons and the Union Minister for Law and Justice.

It would be too simplistic to dismiss this as a turf war between the judiciary and the government. The significance of this case goes much further: it may uproot the fundamentals of what the Supreme Court considers to be judicial independence; and the final verdict (for which, no date has been fixed) may set the tone of the relationship between the judiciary and government for years to come.

"It would be too simplistic to dismiss this as a turf war between the judiciary and the government. The significance of this case goes much further ..."

That such a pot-boiler finale is unfolding today is largely due to some indiscretions of the past governments and judiciary. The Constitution of India, as left to us by Dr Babasaheb Ambedkar, says that the President shall appoint a judge of the Supreme Court after consultation with such other judges as deemed necessary. However, the first cracks in the system appeared when former prime minister Indira Gandhi appointed the Chief Justice of India superseding three senior judges in 1973. Another similar out-of-turn appointment in 1977 made this look like the era of "committed judiciary".

Stung by repeated interference by the Government, the judiciary took its chance to bring in safeguards. When the Second Judges Case came before it in 1993, the Supreme Court created the collegium system and further strengthened this proposition in the Third Judges Case in 1998. Following this, the Supreme Court evolved its own procedures to appoint and transfer judges, whereby the primacy in such procedures was retained with the senior-most judges. The role of the government was essentially nullified. In essence, this was the self-correction to the overreach by the Executive in previous decades. However, Constitutional experts have disagreed with the judiciary in usurping and retaining such vast powers to do with itself, especially in the absence of checks and balances.

This gave rise to the creation of NJAC - with representatives from Government, civil society and the judiciary - by the Parliament. Such a body, it is hoped, will bring back accountability, transparency and fairness to the judicial system. Both Houses of Parliament were near-unanimous in passing the amendment to the Constitution which established the NJAC. With such overwhelming, cross-party political support, how can the judiciary stop the NJAC?

"A brand new Constitutional authority... an institution that is so crucial to the functioning of rule of law and securing our fundamental rights, is likely to be founded this year."

The answer to this question (and related others) has taken three months of India's finest Constitutional lawyers. The lawyers have had to deal with whether the NJAC has been created within the framework of the Indian Constitution, and especially what is known as the "basic structure". A landmark judgement in 1973 (Kesavananda Bharti Case) has classified certain elements of the Indian Constitution as "basic structure". It has been held by successive judgments that the basic structure of the Constitution cannot and should not be tinkered with by any Parliament, as these elements belong to the core of the Constitutional spirit. "Judicial independence" is one such aspect of the basic structure and hence cannot be alienated by any act of Parliament or government. Much of the arguments on the NJAC case have revolved around whether the body itself would violate judicial independence or not.

If Justice JS Khehar-led bench does hold that NJAC to not affect judicial independence, then it will be deemed "Constitutional". Such a decision, of course, would have massive repercussions. Appointments and transfers of judges would then go through the NJAC body. A secretariat will have to be established. Two eminent persons must be appointed as part of the NJAC by a panel consisting of the Prime Minister, Leader of Opposition and Chief Justice of India. The opinion of the government, through the Law Minister, will be taken in to consideration on every judicial appointment. The three judges on the NJAC may find their views not always sailing through.

A brand new Constitutional authority, an institution that comes once in a lifetime and is so crucial to the functioning of rule of law and securing our fundamental rights, is likely to be founded this year. In front of our eyes. That is why this is the most important case of today and possibly in our lifetime.

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