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The Imbroglio Continues

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The apex court reserved its verdict on petitions challenging NJAC’s validity. Justice JS Khehar has circulated his draft verdict among judges of the constitution bench. Two of them want to study the draft of other judges before taking a final call

By Ramesh Menon

A batch of petitions has challenged the constitutional validity of the controversial National Judi-cial Appointments Com-mittee (NJAC) and the Supreme Court has reser-ved its judgment on them. It was feared that the NJAC would give an upper hand to the executive, thereby influencing judicial appointments. The petitions include those by the Supreme Court Advocates-on-Record Association, the Bar Association of India, Center for Public Interest Litigation, an NGO, and others.

When the NJAC matter was finally heard on July 15, the court reserved its judgment, directing that its interim order on the tenure of additional judges of high courts would be extended till pronouncement of the judgment in this case. It was heard by a constitutional bench of Justices JS Khehar, J Chela-meswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel.

js khehar (3).............................
Justice Khehar

India Legal has learnt that Justice Khehar has circulated his judgment to the other four judges, saying that the NJAC was unconstitutional. We have also learnt that two of the judges want to see the stand taken by the others before giving their view on the draft judgment. While going to press, the final judgment had not been heard.

When the verdict comes out, it is likely to spell out if the judiciary will have the primacy to decide on the appointment of judges. It is definitely going to be a landmark case as far as constitutional cases go. While the judgment is eagerly awaited by the government and the legal fraternity, it is not clear whether it will be referred to a larger bench of the Supreme Court.

Sources in the prime minister’s office (PMO) said that Union Law Minister DV Sadananda Gowda had personally visited Chief Justice of India (CJI) HL Dattu two days prior to a meeting at the PMO to select eminent persons for NJAC. At that time, Dattu had agreed to attend the meeting. But on the day of the meeting, the prime minister received a letter from the CJI pointing out that since the matter was pending in the Supreme Court, it would not be appropriate for him to participate in the process.
So, what are the options before the government on NJAC?
If the Supreme Court rules and declares the NJAC unconstitutional, the government is likely to come out with another bill but will not allow the old collegium system to continue which selected judges of both high courts and the Supreme Court.

Legal experts feel that if the court develops a transparent mechanism for its own accountability, then it may be difficult for the government to propose another bill similar to the NJAC.

The apex court may refer this matter to a larger bench. In that case, the situation may be the same as it is today, with no new appointments being possible. As of today, there are more than 392 vacancies for judges in high courts and the Supreme Court, according to the Department of Justice. This has seriously affected litigants and the dispensation of justice as cases are piling up by the thousands each day. As no decision can be taken on appointments, the post of chief justice has not been filled in the Gujarat High Court, Gauhati High Court, Patna High Court, Punjab and Chandigarh High Court, Karnataka High Court, Rajasthan High Court and Bombay High Court. These courts are functioning with an acting chief justice.

Who are the losers? Ironically, many of them are children and close relatives of judges and politicians who are waiting for their names to be cleared for appointment as high court judges. It includes 73 relatives of judges and 24 relatives of politicians. The prominent ones are Somesh Khare, son of former Chief Justice of India, VN Khare, and Neeraj Tripathi, son of Keshrinath Tripathi, governor of West Bengal. There are nine other names that are under consideration to become judges who are close acquaintances of a powerful union minister.

Former law minister and noted lawyer Ram Jethmalani while speaking at a seminar on NJAC had called it a fraud on the constitution. He pointed out that a litigant should not be part of a process for appointment of judges and the government is the biggest litigant in the country. “Corrupt politicians always want a corrupt judiciary. We must have an appointment system in which litigants should not have a say. People approach the court against corrupt and illegal actions of the executive and there may be apprehension and suspicion that a judge in whose appointment the government played an important role may favor the government,” he said.

Former additional solicitor-general of India Indira Jaising told India Legal that she did not agree with the selection method of the NJAC that has been put in place by the NDA government as it could prevent competent judges or those who have given judgments against the illegal acts of the government from being considered. “The executive just needs a veto to reject a judge and he or she will not be appointed. It is a completely unacceptable method as it can affect the independence of the judiciary. A transparent collegium would have been more acceptable as it would invite nominations and have a search committee of judges, academics and lawyers to give inputs on the nominee. We need a fundamental change, not cosmetic change. We should not let the executive dominate the judiciary,” she said.

As many as 64 complaints regarding corruption involving judges are pending with the law ministry. However, the ministry has not forwarded it to the CJI for action. Sources said that it is because there is yet no finality in the NJAC system.

Senior lawyer Colin Gonsalves told India Legal: “The NJAC law would give the government absolute powers to appoint docile judges who will do things that the government wants. If the NJAC becomes a reality, the independence of the judiciary will end. All social action litigation will also come to an end.”

However, this is in contrast to the stand taken by the late Justice VR Krishna Iyer who had said that a collegium untrained in the task would select judges in a secret and bizarre fashion, leaving room for nepotism, communalism and favoritism in the absence of guidelines. “Nowhere in the world do we have judges alone selecting other judges,” he had said.

After her retirement from the Supreme Court, even Justice Ruma Pal had warned of the collegium system and said that a chance remark, a rumor or even third-hand information may end up damaging a judge’s prospects. Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and the credibility of the judicial system, she
had said.

Clearly, there are divergent views on whether the collegium system is better than the NJAC or not. All eyes are now on how things will shape up after a final call on
the matter.

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