Saturday, October 17, 2015

Scrapping NJAC: Judiciary versus not executive but will of the people

A five-judge Constitution bench of the Supreme Court on Friday scrapped the National Judicial Appointment Commission – passed by Parliament as the 99th amendment to the Constitution – disallowing the Executive a hand in selection of judges for appointment to High Courts and the Supreme Court.

Though one of the judges, Justice Chelameshwar had his reasons to uphold the validity of NJAC, the ruling will prevail till the government of the day at the Centre decides its future course of action to protect its Constitutional amendment. Therein is the recipe for a future confrontation between the judiciary and the executive on the issue of judicial independence.

India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.

What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.

Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.

It is the same principle of judicial accountability that provides a hierarchical system of the Supreme Court over the high courts and the high courts over the subordinate judiciary. However, the Supreme Court does not have an authority above it. So, how will the apex court account for accountability? The age of whimsical Victorian morality is long past us and Indian judges themselves have often admitted that they too are humans and therefore subject to mistakes. They are the conscience-keepers of the Constitution. Does it mean they are accountable only to themselves?

The entire controversy between the judiciary and the executive over the appointment system arose because of follies committed by both in the past. In the early years after Independence, it was so that most of the judges of the Supreme Court were previously judges of the high courts, with the senior-most of them taking over as Chief Justice of the apex court. It was in 1958 that the Law Commission of India found that the process did not take merit into account.

The Commission’s view-point was ignored until former Prime Minister Indira Gandhi decided to openly interfere with the judicial appointments, thus confirming her authoritarian mood that would eventually plunge India into the dark period of Emergency. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding three justices. She obstinately named his successor too – Justice MH Beg – superseding Justice HR Khanna who, coincidentally had dissented in a 1975 case on the need for Emergency detenus to have recourse to legal remedy.

The judiciary stung by such blatant misuse of power, and turning a blind eye to the less than proficient postures of the two Indira’s appointees, decided to bring in safeguards. The issue that remained unresolved in major judicial debates and in the deciding of such cases in courts was the nature of “consultation” (of who-ever, the Chief Justice or the President through the executive, etc) in the appointment of judges. Through rulings in what are called the First Judges’ Case (1981), the Second Judges’ case (1993) and the third Judges’ case (1998), the judiciary twisted and turned with this word.

First it said the Constitution talks about “consultation” and not “concurrence”, meaning thereby that while the Chief Justice can be consulted, the opinion of the President and not of the Chief Justice will have primacy. That was fine with the Constitutional provision. Then it made a turn, saying the opinion of the Chief Justice should have primacy. This was against the provision of the Constitution which says the President will appoint the judges after consulting the Chief Justice. This amounted to the judiciary becoming what some legal experts a self-appointed institution which was not as per the Constitution. The judiciary elsewhere in the world does not have such freedom to appoint judges by itself. In any case, since then, the collegium system came into existence which nullified the role of the executive in higher judicial appointments, the executive nursing its political wound saying the judiciary was over-reaching and that the executive would have to have a say in the appointments.

The NDA government brought in a bill to set up the NJAC. It was passed by Parliament in 2014 and came into force from this April. At last count 20 states had ratified it. However, some legal experts challenged it in the supreme court saying it stifled the role of the chief justice of the Supreme Court, subverts the independence of the judiciary and works against the “basic structure” of the Constitution.

Their contention was that the “basic structure” of the Constitution is not amenable to change at all and that judicial independence is one key aspect of the “basic structure” and therefore cannot be diluted by Parliament. A landmark judgement in 1973 (Kesavananda Bharathi case) had classified certain elements of the Indian Constitution as "basic structure". It has been held that the “basic structure” of the Constitution cannot and should not be tinkered with, as it belongs to the core of the Constitutional spirit.

The fight between independence – whose? -- and accountability – whose? -- has only begun.

The larger issue the judiciary will have to think about is the primacy of the will of the people in democratic India. Both Houses of Parliament had passed the NJAC Bill and 20 state assemblies have already ratified it. By committing itself against the NJAC, the Supreme Court with one stone wasted the opportunity of tweaking the NJAC to its satisfaction in consultation with the government and, secondly, has put itself in an impossible position to defend in future its preferred system of appointing judges on its own.

Supreme Court suspends ban - Mumbai dance bars to open

Acknowledging the right of women bar dancers to follow their profession, the Supreme Court suspended Thursday a legal provision banning dance performances in Maharashtra and directed the state government to grant licences to the bar owners without insisting on the prohibitory legislation. Critical of the 2014 amendment in the Maharashtra Police Act that had imposed a total ban on dance bars and dance performances, a bench of Justices Dipak Misra and P C Pant noted that the state government re-enacted a similar piece of legislation after the top court struck down a prohibitory provision in 2013.

The bench rejected Maharashtra government’s argument that the two provisions were different and the 2014 amendment was perfectly valid. “The difference that is perceptible from the provisions which have been reproduced above are really immaterial,” it said. The bench went on to note that there are situations when the “legislature steps in to remove the base” of a judgment and to validate a provision after the court has declared the provision as unconstitutional. In some other cases, the legislature brings an amendment whereby the defects pointed out by the court are removed, said the court, adding: “Significantly, in the present case, similar provision has been introduced by enhancing the sentence of fine.”

Underlining the necessity of issuing the interim order after it was told that the dance bars have been closed in the state since 2005 and nothing changed even after the apex court’s 2013 judgment, the bench said: “We think it appropriate to stay the operation of the provisions enshrined under Section 33A(1) of the Act.”

However, it added a caveat that “no performance of dance shall remotely be expressive of any kind of obscenity in any manner” and that “the licensing authority can take steps so that the individual dignity of a woman is not affected and there remains no room for any kind of obscenity.”

The bench said police and other government bodies have sufficient power to “safeguard any violation of the dignity of women through obscene dances” and they will make sure such performances do not adversely affect public order.

“As we are staying the provision, if the members of the petitioner apply for licence, the same shall be considered in accordance with law without taking note of the restriction as Section 33A has been stayed by us,” held the bench.

It asked state government to file its affidavit in response to a petition filed by the Indian Hotel and Restaurants Association and others, which have pleaded the court to declare as unconstitutional amended Section 33A. Before the amendment in 2014, Section 33A allowed dance performances in “exempted” establishments like three-star and five-star hotels but banned it elsewhere on an argument that the dance bars were obscene and acted as pick-up points for vulnerable girls. Such a classification between three-star and above hotels and other dance bars was held to be bad in law and the top court quashed the enabling provisions, slamming the “elitist” attitude of the state government.

The then Congress-led Maharashtra government moved to plug this legal loophole instead of accepting the court’s order to think of “imaginative alternative steps” so as “to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls.”

The state cabinet decided to extend the ban to high-end hotels and private clubs too and amended Section 33A, thereby affecting a total ban on dance bars and dance performances.

Friday, October 16, 2015

Collegium system not perfect, but superior to NJAC, says former CJI

Does the government’s involvement in the appointment of judges to higher courts pose a threat to the independence of the judiciary? This question is central to the ongoing debate over the National Judicial Appointments Commission (NJAC). The NDA government's decision to replace the collegium system which has been in place since 1993, has left the legal fraternity somewhat divided.

A few members of the fraternity firmly believe the collegium system is "unconstitutional and anti-democratic" where judges are appointed through "secret soundings and cronyism" while others say that the government wants to "interfere" in the independence of the judiciary and it needs to be resisted.

The collegium comprises the Chief Justice of India, four senior most judges of the Supreme Court and the chief justice of a particular high court and its two senior most judges. The NJAC, which was brought into existence after inserting a new article (Article 124A) in the Constitution, consists the Chief Justice of India as ex-officio chairperson, two other senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons to be nominated by a committee consisting the Chief Justice of India, the Prime Minister, the Leader of Opposition in the Lok Sabha or where there is no such Leader of Opposition, then the Leader of the single largest Opposition party in Lok Sabha. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

At present, the Supreme Court is examining the constitutionality of the NJAC and has refused to accept the government’s demand that the matter be referred to a larger bench of 11 judges from the existing five-judge bench headed by Justice JS Khehar. The court has said the hearing of the case will "continue on merits".

Justice VN Khare, former Chief Justice of India, says there is nothing bad with the existing system but accepts that there is scope for its improvement. "There is nothing bad with the collegium system. It is, in fact, superior to the NJAC in many ways. It will also be unfair to say that it is not transparent. But yes, it can be further improved by making it more transparent. One or two persons nominated by the President can be included in the selection committee,” he toldFirstpost.

When asked who should be nominated, he says the President can nominate an ex-CJI or judge in the collegium. But he strictly says there should be “no say of politicians in the appointment of judges because usually, the government is the main opponent in the people’s cases and there is chances abuse of executive powers”.

He refused to accept the allegation of bias, favouritism and nepotism in the appointment of judges but accepted that there is corruption in judiciary. “I cannot claim that there is no corruption in the judiciary but its prevalence is negligible,” he added.

Adding that the government passed the NJAC Act in “undue haste and without consulting the judiciary”, Professor Faizan Mustafa, vice chancellor of NALSAR University of Law, Hyderabad, told Firstpost, “The independence of the judiciary is not the private right of judges; it is the right of citizens. Ultimately, judicial legitimacy rests on public confidence in the courts. Appointment of judges is seen as a crucial mechanism to achieve judicial independence. Judges must be independent of executive, senior judges and in their ideology.”

“The NJAC in its present form may not achieve these ideals," he says arguing "We had the primacy of executive in the appointment of judges in the first four decades of our republic. Though most of the judges picked up under this system were independent, upright and fearless, at times the government did succeed in appointing several pliant and submissive judges." He feared that the NJAC with Law minister as member may be used by the government in appointing judges of its choice. “Moreover, since the government is biggest litigator, it should not be allowed to cherry pick judges.”

There’s no clarity even on the two ‘eminent persons’ and the vagueness is deliberate, he said. "They are to be selected by the Prime Minister, the Leader of Opposition and the Chief Justice of India. One possibility is that two politicians would join hands and make the CJI’s opinion irrelevant as there is no mention that the selection should be unanimous or alternatively the CJI in the hope of becoming Lokpal, Governor or NHRC Chairman would join the Prime Minister and make the opinion of the Leader of Opposition insignificant”.

Advocate Shahid Ali, senior lawyer at the Delhi High Court, says the “attempt to interfere in the independence of judiciary through the NJAC will prove to be fatal for the democracy and detrimental for fundamental rights guaranteed in the Constitution”.

Advocate KC Mittal, former president of Delhi High Court Bar Association and ex-chairman of the Bar Council of Delhi, strongly opposes the collegium system but appears to be apprehensive about the future of the NJAC.

“After an extensive debate about the role and power of the judicial processes, the framers of Constitution never agreed to absolute power to the judiciary in matter of appointment of judges, leave aside the so-called innovative idea of collegium. The text of our solemn document is very clear and unambiguous,” he told Firstpost.

“Prior to 1993, the executive alone had the over-riding power to make the appointments in consultation with the judiciary. The names of aspirants to judgeship or recommendations thereto by the Chief Justice of a High Court would get examined in the closed system of the executive. It was not bound by the recommendations and was competent to take final decision,” he argues.

However, in the Supreme Court Advocates-on Record Association vs Union of India case, the nine-judge bench took over the power by judicial interpretation to introduce the collegium system and make recommendations binding on executive. Thus, the concept of “consultation” was judicially transformed into “concurrence”.

“The system introduced by the judgment as reinforced by 1998 reference to the Supreme Court has been practiced by the apex court and blindly followed by the government since then. The Constitution remains as it was before the 1993 verdict.

Interestingly, he says, the reaction of the bar then was positive as it thought that the removal of “evils” in the appointment of judges would lead more welcome reforms, which would take care of “massive complaints of nepotism, favouritism and even corruption”. “But soon, within a couple of years, disappointment with the system was creeping as the scenario did not change. Post 1993, the experience of two decades is that the system made by the judiciary proved to be no less worse than what was prevalent in the pre-collegium days.

The veteran lawyer alleged some compromise matrix works in recommending the names at the whim and fancies of each member of the collegium. “This is not gossip but truth filtering out of the experience and knowledge gathered over the years. Everyone connected with the administration of justice pontificates on the need to fill up vacancies but refuses to remove the basic causes affecting the process of appointment based on give-and-take. This pick-and-choose formula is disastrous as it undermines the creditability and veracity of collegium mechanism. To put it differently, the experiences have shown that those who have God Father in the higher ups make task easy and smooth to push the name(s), even get cleared by the IB (intelligence Bureau) to ultimately make appointment comfortably,” Mittal said.

He said people believe in evolution of the system but with the passage of time it becomes redundant. “When the executive-controlled system failed, the collegium came in. When collegium is now under shadow, we jumped to the NJAC but where is the guarantee that the new law would not go the same way? Is it humanly possible that six members of a supreme body will have firsthand knowledge of each and every candidate? They would ultimately depend either on hearsay or some source of their own. This again would be unscientific, irrational, unpractical and unworkable,”