The NJAC Debate: Purple Prose and Red Herrings

If you thought that the discord over the National Judicial Appointments Commission( NJAC) and the sparring between the government and the Judiciary was about “independence of the judiciary” or “will of the people” – think again. From where I sit it is a simple contest for power: in a country where fiefdoms are assiduously carved out and fiercely protected since the days of the East India Company, one has to guard one’s turf zealously to survive and what we are witnessing today is a reaffirmation of this primordial instinct. The battle is no doubt couched in politically and legally correct jargon: basic structure of the Constitution, sensitivity of the selection process, sovereignty of Parliament, separation of powers, tyranny of the unelected, and so on. But its about none of these: its simply about being numero uno at the top of the heap.

The Indian people want neither the tyranny of the elected nor the tyranny of the unelected – we want a judicial system that works and judges who are men of integrity and fairness. According to the Supreme Court this can only be ensured if the judiciary is “independent” – meaning, that judges can only be appointed by an amoebic process, i.e they self-reproduce without any external fertilisation. While this may be okay for protozoa it is certainly not adviseable for more advanced evolutionary species. It is my submission that “independence of the judiciary” in the matter of their appointments is a red herring that deflects attention from the real issues that need to be tackled if we really want judges who are free, fearless, unattached and honourable. To assume that a mere mortal system of appointments can guarantee these qualities is akin to believing that the moon is made of blue cheese, as the conduct and track record of many judges in the past have proved. True independence does not depend on who appoints you or from any fanciful separation of powers; it comes from a basic strength of character, self-imposed standards of integrity, a willingness to offer oneself for scrutiny and a commitment to one’s vocation. Everything else is a red herring and an alibi.

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There are four issues / problem areas that need to be addressed:

ONE: Abolish the system of appointing retired Supreme Court and High Court judges to Tribunals, Commissions, Lokayuktas and other sinecures. This is a self created system at which the Executive has connived with, for obvious reasons. There is no politically correct way to put this: the day a public servant (and judges are public servants too) seeks or accepts a post-retirement assignment he compromises his objectivity and it will be a very rare person who can buck this rule. The hand that feeds is rarely bitten. Most of these Commissions and Tribunals are by now permanent bodies and therefore these posts should be encadred and ONLY SERVING JUDICIAL OFFICERS OF APPROPRIATE SENIORITY should be appointed to them. For shorter duration bodies (such as Commissions of Inquiry etc.) too serving officers could be taken on deputation. In such a process neither category of judges would have to be beholden to anyone for the posting. The current system of appointing only retired judges smacks of patronage at both ends.

TWO: Abolish the practice of recruiting 50% of the higher judiciary from the Bar. In theory this process is intended to tap into the best and most experienced legal pool so as to elevate the quality of judges in the higher courts, and in many cases it has done so. But it has also created another parallel system of patronage with both the executive and the judiciary presiding over it. It is no secret that political parties when they come to power seek to reward their favourite lawyers by such elevation, and the large number of relatives and associates of sitting judges appointed by this route indicate that such patronage is not limited to the executive only. Secondly, an eminent and reputed lawyer with decades of practice who is appointed to the higher courts cannot but bring with him the baggage of industrialists, politicians, corporations and other powerful people whom he has represented during his long career at the bar. Conflicts of interest are bound to arise in such cases and the mechanism of recusing one’s self from a case is no solution. Thirdly, the most outstanding legal brains at the Bar have no wish to join the Bench in any case. They earn at one hearing what a Supreme Court judge perhaps makes in a year, they enjoy an equal status among the legal fraternity, and they even have the option of a political career ahead of them! For them its a no-brainer, and therefore the objective of attracting the best legal talent to the Bench is not even partially served. On balance, this is not a healthy system and should be replaced by promotion from the permanent judicial services. On the bench objectivity is a much more preferred quality than mere brilliance.

THREE: Create an all-India, national judicial service to attract the best legal talent from the law schools and the Bar to the judiciary: this will provide a uniform standard of dispensation of justice throughout the country, and prepare a nursery for selecting candidates for the higher judiciary. Currently, the brightest law graduates spurn the judicial services which are state level and start at fairly low positions, and where promotion prospects are severely limited by the practice of recruiting higher level judicial officers from the bar. An all-India service (on the lines of the IAS, IPS, IFS etc.) would remove these drawbacks and qualitatively improve the caliber of judicial services throughout the country. This has been talked about for a number of years but unfortunately neither the Supreme Court nor various governments have taken any initiative to push this idea forward.

FOUR: Amend the Contempt of Courts Act to make it reasonable and less draconian. Judgements that effect the lives of millions of people should be able to be discussed, criticised and any shortcomings in them pointed out. This constitutes valuable feedback for the courts. Unfortunately, as the Contempt Act stands today, any such criticism could constitute contempt and be punishable. This insulates the courts from the winds of reality and, in the longer run, weakens their credibility in the eyes of the public: this in turn could affect their independence and autonomy. The Act should be limited to providing protection to judges, not their judgements, and to the enforcement of judicial orders. The best protection for the dignity of the courts lies in the wisdom of their judgements (not in punitive legislation): the former ensures respect, the latter fear and distrust. A democratic institution cannot be founded on fear and distrust.

These four reforms / measures would do much more to strengthen the “independence of the judiciary” and free the government from the “tyranny of the unelected” than any system of appointments. They would also improve the quality of justice dispensed, which appears to be declining under both the appointment systems which we have tried so far. Let us lay this ghost of “primacy of appointments” to rest. The ordinary citizen of India is fed up of cliches, of both the “committed” and the “independent” judiciary, and of the “will of the people” and “Parliamentary sovereignty”. How about giving us an “effective” judiciary and a Parliament that simply works?

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

4 Comments

  • I agree with most of your ideas (and love the way you articulate them!) on this thorny issue of judicial appointments which defies anything close to a perfect solution. Having something like an Indian Judicial Service with inductions via UPSC like in the IAS is a great idea. It’s unlikely to happen with both politicians and judges loathe to lose their power with such a process in place. Other than that it looks like you too haven’t weighed in on desirable approaches.

    I’m quite against only judges deciding on judicial appointments – what you call amoebic reproduction – which will only increase the power of patronage and nepotism of an non-elected body. As it is there is an abuse of power and authority in this system. Note for example how relatives of high court judges prosper while practicing in the same courts. Not before the same judges but the “scratch each others’ back” reciprocity of judges favoring their colleagues’ relatives leads to the same end result of abuse. Then there is the pure ego trip and misuse of power by judges answerable to no one that will worsen if even their appointments are completely divorced from the democratically elected institutions.

    One approach may be a system of nominations and appointments by a board (or a joint committee) consisting of elected representatives of the ruling party, the opposition as well as the top judges where no group has a majority. And only those folks are appointed that are approved by a majority of the members. This would weed out the pure sycophants and partisans and hopefully inject a little more objectivity to the system.

  • That is precisely what the NJAC sought to do!- it was a six member body, three judges and three non-jurists. But the Supreme Court struck it down on the grounds that it did away with the ” primacy” of the Chief Justice. There were other, wholly untenable and speculative, reasons: that neither the Law Minister nor the two ” eminent persons” could be trusted, that the government should have no role in the selection because it was itself the biggest litigant, that the present attitude and conduct of the govt. was suspect. None of these reasons has anything to do with the ” basic structure of the constitution” which is the ostensible touch-stone for all legislation. It is difficult to agree with most utterances of Mr. Arun Jaitley these days but one has to concur with his statement that by this judgement the SC has turned the constitution on its head and abrogated to itself the power that the constitution vests with the President of India.
    But all this is a smokescreen, as I’ve tried to bring out in my write-up. Neither the collegium system nor the NJAC process can ensure either the quality or independence or accountability of judges unless some of the other issues I have listed are addressed. A transparent, inducement-free, discretion-less( in the matter of appointments) judiciary that allows public scrutiny of its workings is the only guarantee of its independence and credibility.

  • I liked that thought about zealously and jealously protecting one’s turf. That unfortunately is the story of our Governance system and not surprisingly nothing much happens by way of administrative and judicial reforms, as suggested in the article. May be a Central Service for the Judiciary might work better because States will then have less interfering role and the judges could be posted anywhere in India, like High Court judges. The question remains as to who will administer this Judicial Service? The Law Minister? Will the SC have a role? Much needs to be sorted out through continued engagement with the entrenched judicial and political vested interests. Yes, we badly need a working Judiciary AND a working Government.

    About the turf war, i am reminded:
    Hoshiyar yar jaani, yeh dasht hai thagon ka,
    Yahan tak nigah chooki, aur maal doston ka! – Nazir Akbar Aabadi

  • The Chief Justice’s actions amount to a power grab. If I were NaMo I’d meet quietly with political and legislative leaders and propose sinking differences on this issue of Legislature vs Judiciary to see if there is appetite for unified action. This action could be (a) a Constitutional Amendment that lays down and/or clarifies the “right” procedure for judicial appointments, or (b) move to impeach the Chief Justice and other judges seen to be misusing their powers and appoint judges who recognize and respect the proper role of the Legislature and the Executive wings of government. In the process they can also address the abuse by the Judiciary of this practice of exercising executive power through so-called Public Interest Litigation.

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