Saturday, October 17, 2015

My unease with the NJAC judgement

I type this as I am watching the news of the Supreme Court striking down the NJAC enacted by parliament. Following current events with knowledge of elementary civics since many many years, I am slightly more informed than most even if this is a self-assessment and this self-assessment may not pass the pomposity testrder on.

Now I might be in a minority in my views but I do  think that this is a judgement which has far reaching consequences which might conflict with our democracy.  Whether it is correct/legal or not can be better opinioned by experts in this field and I cannot claim to be one. But I can claim to have some  amount of common sense and at the end of the day, law is largely common sense. There are some aspects which are slightly more complex than can be  obtained by common sense but this can easily be understood by  some reading on the subject.
As was remarked in an earlier blog entry, democracy has 3 + pillars:
-          The legislature – who make laws
-          The executive who administer the laws
-          The judiciary who interpret the laws and protect the rights of citizens and the constitution on which our society is based.

No one organ is above the other and these pillars are like a three legged table. If any one leg is of unequal length, the stability of the table is affected. This is the exact situation we are in today.

For a little historic perspective in a highly compressed form:

In the 60s and 70s, the governments of the day were very strong along with a strong backing of a strong legislature. This made pushing laws quite easy. The judiciary abrogated it role of protecting the rights of citizens during the emergency, for example by ruling that fundamental rights were not so fundamental during an emergency.  A strong prime  minister then ensured that the judiciary remained sympathetic to the government cause and there was a clear executive interference in the judiciary and which compromised the integrity .  Post emergency saw a resurgent judiciary determined to regain lost ground. It would take volumes to  explain this in detail but the resurgent judiciary along with weak collation governments and a fractured parliament saw what is called “judicial over reach”.

One milestone was ruling about the basic structure of the constitution. While this cannot be explained in brief, the basic points that arose was:
1         Parliament was a creation of the constitution and could not do anything to alter the “basic structure of the constitution”
2         The supreme court was  the final authority on deciding what was the basic structure of the constitution.

Another milestone was changing the method of appointment of judges. Till then, Supreme court and High Court judges were selected by the executive in “consultation” with the chief justice of India. In the name of judicial independence and interpretation of “conulatation”,  the supreme court changed the system  and took over the role of appointment of judges and made a system of collegium. The collegium has no basis in law nor the constitution and this in my opinion was a  case of overreach.

Another  milestone was the concept of Public Interest litigations.  The intent was a noble one and was meant to protect the rights  of undertrials and that section of society which was not aware of their rights nor had the means to protect the same. The PIL allowed not stake holders to file cases. More on this a few paragraphs later.

What Changed:
Subsequently weaker governments and a lack of accountability from the judiciary saw a lop sided situation in our democracy. The system of judges appointing judges remained unprecedented and is unique to India. As has been widely reported there is no country in the world with such a system. The NJAC was an attempt to restore some balance by making the executive a stakeholder in the judicial appointment process.
Now the constitution has placed law making the prerogative of the legislature.  Parliament is accountable to the people who have voted them and it has to be assumed that they reflect the will of the people.  While this might be not be realistically true on many occasions, we have to go with this assumption or acknowledge that democracy has failed .  The role of the judiciary viz a viz laws  is to check whether laws are in line with the constitution and they cannot get into either the law making process or policy/administrative domain.

The NJAC has been held to be against the basic constitution. The judgement runs into a bit more than 1000 pages so it is difficult to get into the reasoning behind the judgement. However going by media reports the following are the points with my comments:

1)      The new law alters the basic structure of the constitution by giving the executive a primacy in judicial appointment thereby impacting judicial independence which is a basic structure of the constitution.
-          As far as I can see, there is no primacy given to the executive with the NJAC. It is quite a balanced  body with enough checks and balances. There are members of the body from the  judiciary who have veto powers and an undesirable candidate. Executive involvement should not be confused with executive primacy.  Executive/Legislative participation in the appointment process is something established all over the world and we do need to look inwards if we think it is wrong in the Indian context.

2)      The collegium system is a good solution and can be improved.
-          There are 2 parts to this point.
o   Which system is better ?
o   Does it make any difference from a legal perspective ?
-          Which system is better can be debated at length and there will be no common ground found. The second question is the more important one – viz – Does it matter?. The question here is not which system is better but which is legal.  Parliament’s job is to make laws and judicial scrutiny is to check whether the laws passed are against the constitution. This is the major point which is getting diluted with the question of which is a better system. The case should just dwell on the aspect of who makes laws and not get into how to improve the current system. It makes absolutely no difference as to which is the better system from a constitutional point of view. Parliament is elected by the people and is finally accountable to them. If parliament does not reflect the will of the people, the voice of the people will be heard during elections. We deserve the government we vote !!! I am not sure why this line of reasioning is followed by so many luminaries participating in this discussion.

3)      A unwise choice by the NJAC would have far reaching conseqeunces and the damage from such an act cannot be easily undone.
-          This is a risk and hence there should be enough checks  and balances. A  law cannot be struck down because there is a fear that it will not work. There have been stalwarts appointed under the old system who had the courage to take on the establishment on occasions. There have been mediocre and bad  appointments under the collegium system so it is childish to assume that a collegium would make a better choice than a diverse body. The collegium system is shrouded in secrecy with no accountability to anyone. Food for thought: Todays times of India reports that 99 judges of the high court and Supreme court are related to other judges.
4)      The government is the biggest litigant in the country and hence having the law minister as part of the NJAC would compromise its integrity
-          This is debatable and I am not sure of the answer. However by this same logic, the NJAC case is being heard by a bench of the supreme court who are also stakeholders and hence the quality of judgement could be compromised. Also by the same logic a frivolous view could be that  judges should not be allowed to vote since they are indirectly involved in the selection of legislative members.

So to summarize, my opinion is  this is a very unbalanced judgement and is more about distrust between a strong institution and an emergent one.  My fear is thar the democratic process will be the casualty. There might be short term benefits in terms of holding in a non working legislature but the long term damage is too large to ignore.

Remember the three legged table.