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Tuesday, 20 October 2015

NJAC judgment: Reasons why Supreme Court is holier than thou
-Manoj Reddy.K

The Supreme Court judgment on 16 October has declared two things without any further room for doubt. First, it has held the National Judicial Appointment Commission (NJAC) which was brought into force by the 99 amendment as unconstitutional. Second, by arriving at such conclusion few of the reasoning’s given by the majority of the bench reaffirm that Supreme Court of India considers itself to be “holier than thou” in respect to other institutions like Civil society and parliament.

On Civil Society:
Firstly, the distaste of the apex court on the civil society with respect to them playing a major role in the appointment process is evident from what Justice Khehar writes in his majority judgment. He writes that it is difficult to repose faith and confidence in the civil society at the present juncture for a simple reason that it is not sufficiently motivated to act in deterrent to the political executive establishment. The only purpose such argument serves is their own purpose of being self anointed saviors of the democracy and its basic structure.
Secondly, the veto power given to the eminent persons ensures a system of checks and balances by ensuring that tyranny of majority does not affect the process of appointments and also brings in a shared sense of responsibility. The Supreme Court would have used the tools at its disposal to enumerate proper guidelines that would have to be followed by the panel for selection of such eminent members. But instead the court has decided to throw the baby away with bathwater which only assures of its self promoting interests.

On Government:
Firstly, it is the conclusion of the court that the inclusion of Law minister in the appointment process vitiates the separation of powers and independence of the judiciary. The court has reached this conclusion by arguing that the biggest litigator cannot be made a part of the process of selection as it amounts to erosion of the independence of the judiciary. This reasoning is a flawed one as the government rarely has any personal interest in the litigation or its outcome barring very minimal cases of political importance. The outcome of such litigation does not have any bearing whatsoever on the concerned minister or a bureaucrat. It is a figment of court’s imagination that every litigation involving the govt makes the person in charge an interested party.
Secondly, the court in its reasoning for disagreeing with the inclusion of Law minister have warned us off adverse consequences of politicians being a part of the selection process. Through this logic it clearly makes its contempt and mistrust on the elected representatives evident by conveniently ignoring the fact that it is they who represent the will of the people which is sovereign in a democracy.
Thirdly, Justice Lokur in his opinion has even ventured to an extent that he has opined that the executive which means any dispensation at the centre, might have objections with the sexual orientation of a person being considered for appointment. Whereas the chief justice of India would not consider such facts to impair a person’s ability to discharge functions that are bestowed on him.  This shows the hypocrisy of the court as it was the same court with its conservative anarchic mindset has championed the cause of Section 377 of Indian Penal Code which criminalizes sex against order of nature against the judgement of Delhi High Court which struck it down. It also goes to show in what esteem it holds the government as the present executive means the government of the day. This goes on to show the mistrust of judiciary with other organs of the constitution with whom it was envisaged to coexist but not to usurp their domain and judge them.

On Politicians:
The reasoning of the court with respect to ensuring independence of judiciary has been rooted in characterizing politicians as the nemesis to the idea of protecting and ensuring an independent judiciary.
The Court has sequentially portrayed itself to be the guardian and protector of democracy and democratic values in India. This can be noted from Justice Khehar’s majority judgement where he has quoted the remarks of L.KAdvani with respect to forces that could crush democracy being active and supported the same with the incidents pertaining to resignations of governors with respect to which he stated that one wonders whether all these were voluntary. The construction of this premise of forces crushing democracy and quoting incidents with respect to governors goes onto show how the court has established itself as a champion and politicians as characters in negative roles.
It is the court which has ventured into happenings like resignations of civil servants and other person holding high positions in institutions of significance and by linking them to the comments made by Advani it is the judiciary which clearly and cleverly tried to malign the image of the government by connecting it to those incidents by stating that it reflects the spoils system.

On a parting note the court has acted as a one man army for the cause of ensuring protection of independence of judiciary by undermining and ignoring some important covenants of our democracy like the elected government which represents the will of the sovereign and the executive. The one essential inference that court failed to draw because of its holier than thou attitude is that it was the will of an unanimous parliament and 20 state assemblies which represent the wishes of Indian public that they no longer trusted the judiciary alone to appoint its own brethren and that is primarily why they did not envisage for judicial primacy in the NJAC. 



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