The Indian Government headed by Prime Minister Narendra Modi has locked horns with the judiciary. Led by none other than India�s Finance Minister Arun Jaitley, the judiciary has got flak for a recent judgment

Battle between the Modi government and the judiciary begins

The Supreme Court of India struck down  the National Judicial Appointments Commission (NJAC).  With this it revived the age-old 'judges-selecting-judges' collegium system. The order also went against Parliament’s decision to usher transparency in appointment of judges. At the same time, it readied for a confrontation with the executive.
A five-judge bench, through a majority decision declared the NJAC Act as unconstitutional. Its logic was that the  NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary - the Chief Justice of India and two senior-most judges of the SC. Under the NJAC, any two members can veto a proposal.
 Calling the NJAC a “sure recipe for executive interference” in judicial independence, the Court said that inclusion of a politician, namely the law minister, to select judges was fraught with danger. This, the Court observed, breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges and was, thus, violative of the basic structure.
 The collegium system, the Court further observed, wherein judges being appointed since 1950 on advice of the Chief Justice of India, apart from mandating the primacy of the judiciary, also make it abundantly clear that political executive has been conscious of the need for appointments being made by the Chief Justice of India.
  Given that the Government is among the biggest litigant, its inclusion in the form of a member would hinder the justice delivery system. Worse still, it would make it suspect for the common man. “The participation of the Union minister in charge of law and justice, as an ex-officio member of the NJAC, would be clearly questionable," the court said. It could also lead to  what the Court called the "conflict of interest" handicap against those judges from hearing cases against the government.
The collegium system of appointment of judges is a consequence of two judgments of the Supreme Court in 1993 and 1998 respectively. Under this, selection of judges to the SC is done by a body of five judges - the CJI and four senior-most judges of the SC.
High court judges are selected by the HC collegium in consultation with a Chief Minister and  Governor and sent to the SC, where a panel of the CJI and two senior-most judges vet it before sending it to the government for appointment.
Even while upholding the collegium system the Court conceded that the judges-selecting-judges mechanism needed an overhaul vis a vis transparency. All was, the judges observed, not well with the collegium system.
 That the collegium system has been under attack is well known. Well aware of its pitfalls, the Government had mooted the NJAC. The Courts, however, inflicted what is being dubbed as a “lethal blow” to the government’s bid to reform the judiciary.
 Consequently the knives are out with ministers crying foul.
 Arun Jaitley used the social media, namely the Facebook, to vent his ire. In what he called an alternate view, India’s Finance Minister, pointed out errors in the Supreme Court judgment that struck down the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission.  
 The lawyer in him coming to the fore, Jaitley convincingly argued the case in favour of the NJAC. He did it point by point.
 On the argument that the presence of a Law Minister in the Commission will constitute political involvement in the judicial appointments, Jaitley has said that this is the essence of the Constitu­tional amendment being struck down.
 The Judges, he said,  warn of “adverse” consequences if politicians were a part of the appointment process. They have thus called for protection of the judiciary from political persons.
 Jaitley sees the judgment loaded heavily against the politicians and states it as politician bashing.
 The judgment, he says, hammers the point of independence of the judiciary being part of  the basic structure of the Constitution. However it  overlooks the  other structures namely Parliamentary democracy and an elected Government, which represents the will of the people. Therefore while upholding one basic structure i.e. the judiciary the judgment has rubbished all others, Jaitley argued.
 “The Indian democracy”, he added, “cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger…. As someone who has spent more years in court than in Parliament, I feel constrained to speak out for Indian democracy. There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected… Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy”.
 The Courts lost no time. Taking suo motu cognizance of Jaitley's criticism of the verdict, the court slapped a notice on Jaitley. It charged him with sedition and ordered that he appear in court next month.
 Jaitley is not alone. There were other ministers who rued the judgment. They were not as blunt and forthcoming as Jaitley but they did express their concerns over the judgment.
Union law minister D V Sadananda Gowda said that he will consult Prime Minister Narendra Modi and legal experts. Stating the Court’s decision as “surprising”, Gowda said that it was the will of the people that was brought before the Court.  
Union minister Ravi Shankar Prasad said that the  Supreme Court's willingness to take suggestions on improving the collegium system to appoint judges to the higher judiciary shows that there was "something wrong”.
 There is much more than something wrong really. The appointments and transfers have often been criticized for lack of transparency. There have been charges of growing corruption that have adversely affected the image of the judiciary. Merit has,often, taken a backseat with favoritism being the key  in appointments or transfers of  judges. Therefore when the apex Court observed that there was something wrong, it was putting it rather mildly.
 As against this, the NJAC is seen as backdoor entry of the government into the judicial system and a move towards bringing it within the ambit of the executive. Therefore the argument of transparency versus independence of judiciary holds. In this context the role of the judiciary as far as scams go cannot be undermined. There is strength in the argument that if the government has a role in appointing judges, the people’s faith in the judiciary may be undermined. It would, it is argued, be seen as another arm of the elected government and  thus as one that is, at its beck and call.
 The choice, therefore, is  between the devil and the deep sea: whether it is better to have a judiciary independent of the government or one where the government has some presence.
 In striking down the NJAC the Supreme Court decided to moot for independence of the judiciary even while accepting flaws of the collegium system. This it did much to the chagrin of the government, particularly Jaitley, who was pushing for reforms in appointments and transfers of judges.
 Touted as Jaitley’s pet child for more reasons than one, the NJAC would surely have been a step forward in changing the face of the judiciary. It would end the primacy of the judiciary and bring about parity between the judiciary and executive. It would check the growing nepotism and opaqueness in appointments and transfers of higher judiciary.
The Government’s presence in the selection process could have been counter-productive and a stepping-stone for conflict between the judiciary and the executive. Critics also see it as a ploy to bring it within the ambit of the executive and limiting it in pinning down the government and its malafide actions.
 Even while the Courts have delivered the judgment it is unlikely that the Government will sit still. It is preparing to strike and strike soon. If Gowda’s assertion of taking legal opinion is anything to go by, the battle has just begun.  

The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: ([email protected])

 

The Indian Government headed by Prime Minister Narendra Modi has locked horns with the judiciary. Led by none other than India�s Finance Minister Arun Jaitley, the judiciary has got flak for a recent judgment

Battle between the Modi government and the judiciary begins

The Supreme Court of India struck down the National Judicial Appointments Commission (NJAC). With this it revived the age-old judges-selecting-judges collegium system. The order also went against Parliaments decision to usher transparency in appointment of judges. At the same time, it readied for a confrontation with the executive. A five-judge bench, through a majority decision declared the NJAC Act as unconstitutional. Its logic was that the NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary - the Chief Justice of India and two senior-most judges of the SC. Under the NJAC, any two members can veto a proposal. Calling the NJAC a sure recipe for executive interference in judicial independence, the Court said that inclusion of a politician, namely the law minister, to select judges was fraught with danger. This, the Court observed, breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges and was, thus, violative of the basic structure. The collegium system, the Court further observed, wherein judges being appointed since 1950 on advice of the Chief Justice of India, apart from mandating the primacy of the judiciary, also make it abundantly clear that political executive has been conscious of the need for appointments being made by the Chief Justice of India. Given that the Government is among the biggest litigant, its inclusion in the form of a member would hinder the justice delivery system. Worse still, it would make it suspect for the common man. The participation of the Union minister in charge of law and justice, as an ex-officio member of the NJAC, would be clearly questionable, the court said. It could also lead to what the Court called the conflict of interest handicap against those judges from hearing cases against the government. The collegium system of appointment of judges is a consequence of two judgments of the Supreme Court in 1993 and 1998 respectively. Under this, selection of judges to the SC is done by a body of five judges - the CJI and four senior-most judges of the SC. High court judges are selected by the HC collegium in consultation with a Chief Minister and Governor and sent to the SC, where a panel of the CJI and two senior-most judges vet it before sending it to the government for appointment. Even while upholding the collegium system the Court conceded that the judges-selecting-judges mechanism needed an overhaul vis a vis transparency. All was, the judges observed, not well with the collegium system. That the collegium system has been under attack is well known. Well aware of its pitfalls, the Government had mooted the NJAC. The Courts, however, inflicted what is being dubbed as a lethal blow to the governments bid to reform the judiciary. Consequently the knives are out with ministers crying foul. Arun Jaitley used the social media, namely the Facebook, to vent his ire. In what he called an alternate view, Indias Finance Minister, pointed out errors in the Supreme Court judgment that struck down the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission. The lawyer in him coming to the fore, Jaitley convincingly argued the case in favour of the NJAC. He did it point by point. On the argument that the presence of a Law Minister in the Commission will constitute political involvement in the judicial appointments, Jaitley has said that this is the essence of the Constitutional amendment being struck down. The Judges, he said, warn of adverse consequences if politicians were a part of the appointment process. They have thus called for protection of the judiciary from political persons. Jaitley sees the judgment loaded heavily against the politicians and states it as politician bashing. The judgment, he says, hammers the point of independence of the judiciary being part of the basic structure of the Constitution. However it overlooks the other structures namely Parliamentary democracy and an elected Government, which represents the will of the people. Therefore while upholding one basic structure i.e. the judiciary the judgment has rubbished all others, Jaitley argued. The Indian democracy, he added, cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. As someone who has spent more years in court than in Parliament, I feel constrained to speak out for Indian democracy. There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy. The Courts lost no time. Taking suo motu cognizance of Jaitleys criticism of the verdict, the court slapped a notice on Jaitley. It charged him with sedition and ordered that he appear in court next month. Jaitley is not alone. There were other ministers who rued the judgment. They were not as blunt and forthcoming as Jaitley but they did express their concerns over the judgment. Union law minister D V Sadananda Gowda said that he will consult Prime Minister Narendra Modi and legal experts. Stating the Courts decision as surprising, Gowda said that it was the will of the people that was brought before the Court. Union minister Ravi Shankar Prasad said that the Supreme Courts willingness to take suggestions on improving the collegium system to appoint judges to the higher judiciary shows that there was something wrong. There is much more than something wrong really. The appointments and transfers have often been criticized for lack of transparency. There have been charges of growing corruption that have adversely affected the image of the judiciary. Merit has,often, taken a backseat with favoritism being the key in appointments or transfers of judges. Therefore when the apex Court observed that there was something wrong, it was putting it rather mildly. As against this, the NJAC is seen as backdoor entry of the government into the judicial system and a move towards bringing it within the ambit of the executive. Therefore the argument of transparency versus independence of judiciary holds. In this context the role of the judiciary as far as scams go cannot be undermined. There is strength in the argument that if the government has a role in appointing judges, the peoples faith in the judiciary may be undermined. It would, it is argued, be seen as another arm of the elected government and thus as one that is, at its beck and call. The choice, therefore, is between the devil and the deep sea: whether it is better to have a judiciary independent of the government or one where the government has some presence. In striking down the NJAC the Supreme Court decided to moot for independence of the judiciary even while accepting flaws of the collegium system. This it did much to the chagrin of the government, particularly Jaitley, who was pushing for reforms in appointments and transfers of judges. Touted as Jaitleys pet child for more reasons than one, the NJAC would surely have been a step forward in changing the face of the judiciary. It would end the primacy of the judiciary and bring about parity between the judiciary and executive. It would check the growing nepotism and opaqueness in appointments and transfers of higher judiciary. The Governments presence in the selection process could have been counter-productive and a stepping-stone for conflict between the judiciary and the executive. Critics also see it as a ploy to bring it within the ambit of the executive and limiting it in pinning down the government and its malafide actions. Even while the Courts have delivered the judgment it is unlikely that the Government will sit still. It is preparing to strike and strike soon. If Gowdas assertion of taking legal opinion is anything to go by, the battle has just begun. The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: ([email protected])