How the Modi government failed miserably in trying to amend the constitution

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Of late, the ruling government with the BJP at its helm has been trying to amend the Indian Constitution in order to bring more transparency to the judicial process of selecting court judges. However, they have failed to do so till now.

The NJAC case is a classic example of good intentions going down the drain.

Let’s see what went wrong, and why?

What was the NJAC?

  • The government of India in 2014 proposed to set up a National Judicial Appointments Commission (NJAC) which would seek to replace the archaic collegium system of judges’ selection. It would assume the responsibility for the appointment and transfer of judges to the higher judiciaries in India.
  • The commission was established by amending the Constitution through the 99th constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 and was passed by Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.
  • The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015. The two bills, namely, the constitution (99th amendment) Act, 2014 and National Judicial Appointment Commission Act, 2014 (121st amendment) were passed in both the houses, ratified by at least 16 state legislatures of India, and published in the Gazette of India on 31st December

NJAC Governing Body:

The NJAC bench would consist of six people:

  • The Chief Justice of India
  • The Law minister
  • Two Senior-most Judges of the Supreme Court
  • Two Eminent Persons – Eminent persons are to be nominated by the Chief Justice, the Prime Minister, and the leader of the opposition in the Lok Sabha for the term of three years and are not eligible for re-nomination.

NJAC’s stake towards ‘possible’ constitutional validity:

Article 124(c) states – Parliament may, by law regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other judges of high courts and empower the commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.

What went wrong?

  • On 16 October 2015, a Constitution Bench of Supreme Court upheld the collegium system and struck down the NJAC (declared the 99th Amendment and NJAC Act) as unconstitutional by 4:1 Majority after hearing petitions filed by various bodies.
  • Former Chief Justice of India, RM Lodha said that the NJAC is a misleading campaign that aims to defame the judiciary. He said that the Supreme Court is not perfect, but it is a very important institution in a democracy.
  • Former Chief Justice of India, VN Khare said Collegium system may not be perfect but is superior to NJAC.
  • There is an argument that through NJAC, the government is trying to interfere or monitor the independence of the judiciary.

What is the Collegium?

The 22-year-old collegium system consists of the Chief Justice of India and four senior-most judges of the Supreme Court who manage the appointment and transfer of judges to higher courts in India.

The constitutional validity of the Collegium:

  • Article 124 and Article 217 of the Indian Constitution outline the appointment of judges of Supreme Court and High Court and Article 124 states that ‘Every judge of the Supreme Court shall be appointed by the president by the warrant under his hands and seal and shall attain office until he attains the age of sixty-five years’.

Collegium system’s criticism

  • The collegium system has been severely criticized as a closed-door affair where the general public isn’t able to see the transparency in the appointing of High Court and Supreme Court judges and transfer of judges.
  • There is no dedicated mechanism defined in the collegium to check personal and professional backgrounds of the prospective appointees.
  • Several allegations of denial of admission, overlooking of several talented junior judges/advocates and improper background checks have been made in the past. For e.g. The Collegium’s announcement for Justice Dinakaran’s elevation to be a judge of the Supreme Court was questioned for improper proper background checks after severe corruption charges were leveled against him.

The NJAC’s criticism

  • The NJAC is alleged to be violating the basic structure doctrine of judicial independence and separation of power. The article 124 (a) (1) violates the constitution as it goes against the judicial primacy in the judicial appointments.
  • The Keshavanand Bharti Case of 1993 gave the verdict that Judicial Independence is the Basic Structure of the Constitution and no CAA (constitutional amendment act) can compromise its supremity through any executive or legislative interference in the appointment process of judges. Therefore, only the judiciary itself can appoint judges.
  • The Supreme Court had rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment by saying that the judiciary cannot risk being caught in a “web of indebtedness” towards the government by giving politicians and civil society a final say in the appointment of judges to the highest courts
  • The NJAC Act requires the Minister of Law and Justice as the ex-officio member of the Commission which gives his political party indirect control of choosing candidates of their own choice.
  • SC took a stand stating that civil society is not mature enough to select judges, hence safeguarding this power is necessary.
  • The SC said that some measures should be taken to improve the college system and not repudiate it.

NJAC’s plus points:

  • CJI will be the head of the Commission which means the judiciary has its say in judicial appointments
  • The parliament is involved, which means the concerns of the people’s representatives in the judicial appointments will be in line with the democratic principles.
  • Talent will get precedence over seniority and there will be more transparency in the appointment of judges.

Current status

In February 2018, the Supreme Court agreed to hold a review of its October 2015 judgment (that quashed NJAC) ‘sometime in March 2018’. The review petition was filed by the National Lawyers’ Campaign for Judicial Transparency and Reforms which seeks the complete dismantlement of collegium system

Did the government fail in this process?

It is too early to say that the government failed to convince the SC about this new body’s validity since the matter is currently sub-judice. Yes, it is true that the collegium is very slow in appointing judges to higher courts (many spots are currency vacant), but giving the Parliament indirect control over the judiciary is also a decision which needs serious deliberation.

The main question is that who will eventually be the judge-maker? The government (who we elect) or the judiciary who don’t really have a direct connection with the general public? The matter is of intense debate and discussion!

Post your comments about which body you believe upholds the constitution better – the NJAC or the Collegium?

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