For very cogent reasons, I might have safely added : bullshit.
Here’s why :
National Judicial Appointments Commission (NJAC) Act that was brought in to replace the over two-decade-old collegium system, of judges appointing judges in higher judiciary. The method had spawned glaringly bad decisions.
In its judgement yesterday, the Supreme Court struck down the NJAC Act as unconstitutional and void, restoring the collegium system.
The Supreme Court on Tuesday had pointed out deficiencies in the National Judicial Appointments Commission (NJAC) and said these infirmities could create “dangerous situations” like supersession of judges, inadequate regional representation, and presence of not enough women and dalits in higher judiciary.
Why ? The judges express their apprehension, not a point in law, thus : “You will leave many people dissatisfied under the new system. Judges will be superseded while deciding appointment in the Supreme Court and high courts as the selection will be on the basis of merit. It will lead to a dangerous situation.”
Appointing people of merit to their jobs would lead to dangerous situation ! This was a first. What else should be the criteria for appointing judges to superior courts, if not merit ? Even as I write this, I imagine myself screaming my question into the faces of men droning away on more of the same stupid fears and unwarranted presumptions.
“… and there was a possibility that a group of judges from one particular high court could be elevated to the apex court.” Unbelievable, I say, shaking my head at these creatively contrived arguments of men who were already predisposed on the matter, not by the merits brought to their notice but by their resolve not to relinquish their corrupt convenience of moving people up on considerations other than competence.
Though the court ordered revival of the collegium system, each of the five judges acknowledged that all was not well with the judges-selecting-judges mechanism which was in dire need of transparency. It requested the government and the petitioners to give suggestions in writing on November 3 for improving the collegium system.
Why not tweak the NJAC to take care of their apprehensions, especially since the collegium system had built-in reasons for going bad, as indeed it had time and again in practice. No answer.
Why did these exalted minds not consider the fact that the NJAC would have three members of superior court on the panel, where just two could veto any manipulation being managed by the Executive during the appointment process ? Silence.
Finally, in the face of evidence of NJAC — like arrangement working well in the US and several other countries, the bench observed : “In our considered view, it is imprudent to ape a system prevalent in an advanced country, with an evolved civil society.”
We should wallow in the un– or underdeveloped apology of a system that routinely miscarries justice, is ridden with corrupt wheeling and dealing, burdened with black sheep by dozens over competent but overlooked peers, and delivers judgements after decades of delay ? Because we are an “unevolved society” ? What a shame !
Justice Chelameswar listed a number of cases where the collegium had “failed”, and sanguinely concluded in his dissent :
“The two members of the NJAC can override the opinion of the other four and stall the recommendation. I do not find anything inherently illegal about such a prescription. For the purpose of the present case, I do not even want to embark upon an enquiry whether the constitutional fascination for the basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp.”
How is the NJAC “unconstitutional” ? The law is unanimously passed in both houses of Parliament, after due diligence. It received the consent of the President. It was subsequently ratified bt State legislatures, reposing the support and will of the people in it.
How indeed… the Indian public wonders. Nothing in what the Supreme Court has observed makes the NJAC Act unlawful. On the other hand, whatever grounds the judges have pointed in support of their decision can at best be categorised as supposition, presumption, apprehension and, yes, mere opinion.
Where is the Constitution being contravened by NJAC ? The fear of misuse expressed against it is just a ruse, to rationalise the prejudiced pre-formed cartelised opinion of judges, who are merely set to preserve their opaque mutually beneficial ways.
What the Congress Party, which supported passage of the Act in Parliament, has to say only proves that it can very well cut the nose to spite its face. “The judiciary did not trust the govt,” it sagely announced. The irony of its reaction is not lost to the common man. The SC judges have especially cited the Emergency, imposed by Congress Party in 1975, as a primary instance of likely misuse to bolster their disagreement with NJAC.
I believe the last word on the matter — NJAC vs Collegium — is yet to come. That accords with how India’s superior courts have been functioning : tentatively.