With Supreme Court quashing NJAC, battle between judiciary and executive resumes

By Harshmeet Singh

The Supreme Court's decision declaring the National Judicial Appointments Commission (NJAC) as 'unconstitutional' drew contrasting reactions from different corners. While the telecom minister, Ravi Shankar Prasad termed it as 'an attack on the Parliament's sovereignty', senior SC lawyer Ram Jethmalani hailed the judgment, calling it a 'great success for the Indian Democracy'.

Ever since the idea of NJAC was floated, the judiciary seemed averse to the thought of giving away its prerogative of appointing judges to the High Courts and the Supreme Court. Until now, the appointment of judges was done by the Collegium system. Under this system, a collegium consisting of the Chief Justice of India and the 4 senior most judges of the Supreme Court recommended the transfer and appointment of the judges. This system came into being as a result of the famous 'Three Judges Case' of 1998. In the recent years, the collegium system has come under heavy criticism with judges being accused of abusing their power, nepotism and giving birth to a 'give & take' culture. Also, this collegium system doesn't find any mention in the constitution. The article 124 of the constitution says that 'the President should appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court as he/she may deem necessary. The Chief Justice of India is to be consulted in all appointments barring his/her own.'

The proposed NJAC was to be comprised of the Chief Justice, two senior most judges of the SC, the Union Law Minister and two eminent personalities, thereby taking away Judiciary's exclusive right to appoint judges. Many experts termed Government's plans of introducing the NJAC as an attempt to take away the independence of the judiciary, which is the 3^rd pillar of our democracy. Interestingly, the NJAC bill turned out to be one of the very few bills which got multi party support at the centre as well as in the states.

This isn't the first time when the NDA government tried to alter the collegium system. When Atal Bihari Vajpayee was at the helm, the NDA government set up the Justice MN Ventakachaliah commission to study if the current system of appointment of judges needed any changes. The Commission recommended the formation of NJAC which was almost similar to the current form of NJAC, but it couldn't materialize then.

Though the collegium system seems far from perfect, SC's concerns over involvement of politicians in the appointment of judges are completely justified. The appointment of Justice AN Ray as the Chief Justice of India, superseding 3 senior judges, at the behest of Indira Gandhi is still considered as one of the darkest chapters in the history of Indian Judicial system. With the judiciary being given the power of 'judicial review' by the constitution to keep a check on the Parliament's law making prerogative, parliament's control over the judges would destroy the delicate balance between the two arms of Indian democracy.

While the SC completely dismissed the constitutional validity of the NJAC, it humbly accepted that the collegium system can be made better and asked for further discussions on the same. Let us hope that a common ground is found between the two parties with none considering it as a matter of personal pride!

The author is a Freelance writer. This article was written exclusively for NewsGram.