NATIONAL JUDICIAL APPOINTMENT COMMISSION
The landmark judgment of the Supreme court declaring the ‘National Judicial Appointment Commission’ as unconstitutional is a regressive step which not only fails to stand the scrutiny of constitutional scheme of things but also runs the risk of undermining the ‘institutional credibility’ of the court which leaves no stone ‘unturned’ when it comes to define and enforce the principles of accountability and transparency elsewhere. The judgment reflects the political sense of judges who have, to their convenience, created an obfuscative ‘smoke screen’ around the two different questions of accountability and independence of judges so as to avoid conceding any ground to political leadership in the matters of appointment and transfer of judges and to retain the patronage.
It is to be noted that the principle of independence of judiciary thrives on two mutually inclusive thematic domain of ‘content’ and ‘context’ wherein the former is primarily concerned with the degree of inner freedom and liberty enjoyed by a judge while giving expression to his voice and sense of justice along with his jurisprudential flare which also depends on the nature and quality of contextual setting in which he is supposed to work. The NJAC, as a multi member body having representation from judicial as well as non judicial institutions deals with the external realm only and aims at bringing an element of transparency in the appointment of judges based on the ‘doctrine of checks and balances’ which does not intend to interfere in the independence of judges. Besides, given the vibrant democracy of India it would neither be possible nor politically expedient for any political leadership to think of such interference. The regressive judgment reminds us as to how the honorable judges made aborted attempt to keep the judiciary beyond the purview of RTI.
It is not intelligible as to how can there be an island of power in democracy? The Constitution of India does not at all provide for ‘Judicial supremacy’ and the people of India through their representatives have the ultimate authority to decide as to who can be appointed as judge and how is he to be appointed. It is absurd to note that the judges would appoint judges by judging upon the suitability of their brethren with representatives of people playing only a peripheral and ceremonial role.
The stance of the Supreme Court is based on the wrongful and pre conceived notion that representation of law minister and other members nominated by the government would open the doors for political interference in judiciary. Unfortunately, it smacks off a typical behavioral trend of a prismatic clect. We have more than one instances which reveal the inner politics that surround the judicial appointments under the aegis of ‘self- manufactured’ model of collegium system of Judiciary.
The time has come for the representatives of the people to assemble and respond with consensual strength to set the things right otherwise the ‘balance of power’ among the three wings of the government will be disturbed to the detriment of our democracy.
Sajjan Pratap Singh,
Director IIIASA
