Saturday 28 January 2023
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PoliticsIndiaJudges Judging NJAC: Case Of Conflict Of Interest

Judges Judging NJAC: Case Of Conflict Of Interest

news analysis[dropcap]W[/dropcap]hen a judgment of the Supreme Court overturns the will of the people expressed through its representatives — and that too in a well-established democracy — will its criticism attract contempt of the Supreme Court? If the courts have a right to go against a duly processed democratic opinion, its right to hold a dissenting voice as contempt is not tenable.  The overturning of the National Judicial Appointment Commission (NJAC) Act by a 5-judge bench is curious to say the least and difficult to respect, the threat of legal proceedings of ‘contempt’ notwithstanding.

First take a look at the separation of power among the judiciary, executive and legislature. Prime minister is the chief executive of the country. He is responsible to Parliament. Parliament legislates. Bills are brought by the executive called headed by the prime minister who again is the leader of the house — Rajya Sabha or Lok Sabha. Do we see any separation here? True, as CEO of the nation, prime minister cannot legislate. Even if he does that through ordinance, he must get it approved by Parliament. Clearly, the prime minister is responsible to the elected body called Parliament. does not want to be held accountable to anybody. If a layman calls it dadagiri, can he be faulted?

Second, did it not occur to the wise men in our Supreme Court that sitting on a judgment on an issue where they are the direct beneficiary amounts to a conflict of interest? When all other persons in public life — be they bureaucrats, people’s representatives or ministers — cannot cross the Laxmanrekha, how can the Supreme Court do so? When the due process of legislation has been followed, that is the rule. Holding the separation of functions as the “founding fathers” wanted by scrapping the NJAC, the Supreme Court has crossed the Laxmanrekha and trodden on the area of responsibility of the legislature. This is a violation.

Third, by upholding the collegium system, which does not draw any strength from the Constitution drafted by the “founding fathers”, the apex court has violated the very Constitution it purports to defend. How can a decision of the court taken in the past, which went unchallenged by the legislature for reasons best known to the representatives of the day, take supremacy over a duly passed constitutional provision?

Fourth and no less important is the fact that every word written by the “founding fathers” could not have been so sacrosanct that those could not be changed. If it were so, the other 98 amendments passed by Parliament are also invalid and must be scrapped! These had been changes in the wishes of the “founding fathers” as expressed in the document called the Constitution.

No less important is how the judges get appointed in other democracies. Take examples of just three democracies the United Kingdom, Germany and the United States. Do the judges appoint themselves in any of these countries? No.

The Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom

In the UK, the Lord Chancellor, minister of law and justice ministry, has responsibilities for appointing judges and a statutory duty to uphold judicial independence and the rule of law. It is the responsibility of the Lord Chancellor to convene a selection commission. This he does by way of a letter to the president of the court who chairs the selection commission. This president has to nominate a senior judge from anywhere in the UK, but that judge cannot be a justice of the Supreme Court. In addition, there is a member of each of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland, and the Judicial Appointments Commission in Northern Ireland. At least one of those representatives has to be a lay person. Nominations are made by the chairman of the relevant commission/board.

Since 2008-09, the selection commission decided that the vacancies would be advertised. Vacancies thus became the subject of open competition and this practice has continued with subsequent commissions. On each occasion, an “information pack” is drawn up for potential applicants which is publicly available. From 2009-10 onwards, the advertisement and Information Pack have been placed on the Supreme Court website. The information pack sets out, amongst other matters, the criteria the selection commission uses to assess applications.

The Lord Chancellor takes over once a selection commission has made its decision. The commission must submit a report to the Lord Chancellor which must inter alia who has been selected; who was consulted; and which contains any other information required by the Lord Chancellor. The provision also allows for the Lord Chancellor to ask for any further information not included in the report.

The Lord Chancellor is under a statutory duty to consult the senior judges (as above), any other judge who has been consulted, the First Minister in Scotland, the First Minister in Wales and the Secretary of for Northern Ireland. He can invite a reconsideration or he can reject a candidate. But if he does either of those he must give reasons.If, following the consultations above, the Lord Chancellor is content with the recommendation made by the selection commission, he forwards the person’s name to the Prime Minister who, in turn, sends the recommendation to Her Majesty the Queen who makes the formal appointment. Clearly the judges don’t appoint judges in the UK.

Bundesverfassungsgericht, The Federal Constitutional Court of Germany
Bundesverfassungsgericht, the Federal Constitutional Court of Germany

In Germany, appointments and decisions on promotions are made by the executive. There is some involvement of the through participation in judicial electoral committees and advisory bodies. In the 1950s the judiciary wanted to remove political interference from the process. However the legislature rejected this approach due to concerns that that judiciary would become a self-perpetuating elite profession that would be excessively insulated from the democratic concerns of the democratic authorities. Although there is democratic accountability, this does not mean there is political interference. According to a commentator, there are checks and balances that prevent one-sided political appointments including the expectation that the Minister will act on the basis of professional evaluations by judges. Furthermore there is the safeguard of judicial review. But judges don’t appoint judges.

The United States Constitution gives the president the power to appoint judges to the Supreme Court. He has the power, by and with the advice and consent of the Senate, to appoint the Judges of the Supreme Court. Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the president’s political party. The Senate Committee typically conducts confirmation hearings for each nominee. These judicial officers are appointed for life.

The Supreme Court of the United States
The Supreme Court of the United States

There is a longstanding custom in the US, the oldest and most successful democracy in the history of mankind, that senators of the president’s party play the primary role in selecting candidates for the president to nominate to federal district court judgeships in their states. They may also influence the choice of candidate for federal circuit court judgeships associated with their states. If the senators are not members of the president’s party they may still communicate their views about candidates under consideration for judgeships in their States.

As a layman, my sincere question before the Supreme Court is how come the separation of authority between judiciary, executive and legislature is violated by the NJAC in India while similar legislations found vibrant and transparent in advanced democracies like UK, Germany and USA? Perhaps by reading the detailed argument given by the majority in the bench, I may get informed. Till I do so and find the logic produced answer all the issues bothering me at this juncture, I reserve my respect for the judgment.

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Sugato Hazra
Sugato Hazra
Public policy analyst based in Delhi


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