Judicial overreach or judicial activism

The collegium system of appointing high court and Supreme Court (SC) judges had a phoenix-like revival as the SC struck down the 99th Constitution amendment and the National Judicial Appointments Commission (NJAC) Act. The amendment and the NJAC Act were “unconstitutional and void” and as a result the collegium system continued “to be operative,” a five-member Constitution Bench headed by Justice Js Khehar said in a five-point common order. The other members of the Bench are Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel. The Bench also acknowledged that all was not well with the 22-year-old collegium system and offered to take “appropriate measures” to improve its functioning and posted the hearing for the purpose for November 3.

NJAC

NJAC was supposed to have six members headed by the Chief Justice of India. The other members would have been two senior most SC judges, Union Law Minister and two eminent persons nominated by a troika of the CJI, Prime Minister and the Leader of Opposition in the Lok Sabha.

Despite the government notifying the NJAC Act on April 13, the commission never became functional following CJI HL Dattu’s refusal to be part of it till the PILs against the NJAC were disposed of by the SC. The SC Advocates-on-Record Association is the lead petitioner.

Collegium System:

A forum that decides on appointments of judges

Comprises Chief Justice of India & 4 senior-most judges of the SC

The system was put in place in 1993 by an SC verdict

Collegiumhas final say in appointments; the President merely approves its choice

The Contention Over NJAC:

The objection was to inclusion of Law Minister & two ‘eminent persons’ in the NJAC panel

One of the eminent persons nominated should be from scheduled castes, schedule tribes, OBC, minorities or women

According to Section 5 of the NJAC Act, any recommendation opposed by two members would be dropped

Petitioners say nominated members can veto decision & thus govt will control NJAC’s decision

Independence of the judiciary is a basic feature of the Constitution and needs to be safeguarded jealously. Unless the judges are fearlessly independent and upright, justice cannot be even-handed. 

Problems With Collegium System:

The collegium system has often been criticised for its lack of transparency and for promoting nepotism.

To discredit the collegium system, examples were given by the government side of appointments done without merit, of wrong selections, judges coming late to courts or not writing enough judgments.

There have been instances where a candidate rejected by one collegium on account of doubts regarding integrity was picked up by the next collegium. Such appointments tend to shake the confidence of the public and the Bar in the judiciary. 

A few High Court judges who are the products of the collegium system are facing criminal prosecution on charges of corruption.

Criticism Of Verdict:

Maintaining an independent judiciary is vital to a democracy's functioning. But to argue that we can achieve such an end only by allowing judges to select their own brethren is specious. Independence comes from integrity, and not just by having the right to appoint your brethren. The NJAC may not be perfect. But it certainly seeks to achieve a better balance than that which the collegium provides. The NJAC dese

No doubt, the Supreme Court's role in a democracy such as ours is to act as a counter-majoritarian institution. This would naturally involve the judicial review of laws enacted by legislature. But what this doesn't permit the court to do is to re-write the Constitution to serve its own apparent ends. Current verdict not only overturns a decision reached by both houses of Parliament as well as a majority of at least half the country's state legislatures, but it also quashes a law that sought to bring back an element of fidelity to what the Constitution's framers intended.

rved a chance. 

Judges in any free country are either appointed by the executive, by the legislature or an independent panel, but seldom are they appointed by the judiciary itself.

Analysis:

The Supreme Court in its watershed judgment has revived the collegium system in which judges appoint judges. The government plea for a larger Constitution Bench was not entertained. The verdict reaffirms the “basic structure” doctrine.

The collective order by a five-judge Constitution Bench of the Supreme Court to strike down as “unconstitutional and void” the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act 2014, draws a line under arguably the biggest flashpoint between the judiciary and the executive over the past two decades.

This sets the stage for the most serious face off between judiciary and executive in a generation. NJAC was indeed enacted after a broad political consensus which evolved after several commissions and parliamentary committees found flaws in the collegium system over the years. It was ratified by Parliament as well as 20 state legislatures. 

The Constitution envisages separation of powers between legislature, executive and legislature – which means each branch of government, should stay within its own remit. Under NJAC the commission to select judges is composed equally of judges and non-judges, which should prevent power vesting exclusively with either judges or the political class.

By calling for further discussion on the collegium system, the apex court itself has accepted that there were flaws in the system. It must now fix them. The judiciary remains a bulwark of Indian democracy and while preserving its independence is crucial, what’s equally incumbent on it is to look within and reform.

By: Dr. Vivek Rana