By Saurjya Kanta Padhi*
Many eminent persons have spoken in favour of the judgment and many have spoken against the judgment in the NJAC case delivered on 16.10.2015. Those who speak against the judgment, which happens to be the majority, feel that the judgment is a death knell of the Parliamentary form of democracy and this judgment is trying to protect another judgment of the Supreme Court in Advocates Record Association Case of 1994, which itself was against the basic structure of the Constitution. Even a layman can perceive it to be so. Many eminent persons who have challenged the amendment, have done so with sincere intent as they felt the higher judiciary is to be insulated from the executive and the present executive elected by an imperfect democracy cannot be trusted.
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Striking down the NJAC, in my humble view, was a historical blunder. Not because the amendment was passed unanimously by the Parliament and ratified by all the States, but because the judiciary should have welcomed the presence of non-judicial persons in the appointment process. The very presence of non-judicial persons would have made the system more transparent and relatively free from favoritism. The only possible change which the judiciary could have made was to hold that the appointment of judges would be made if it is approved by four members out of which three must be of the judiciary. Since the definition of eminent person is lacking, it could have been interpreted and judicially clarified that eminent person would mean; any person eminent in the field of law and judiciary i.e. Former Chief Justice of India, Former Judge of the Supreme Court, Former Attorney General, Former Solicitor General or reputed Senior Advocates. It was an opportunity for the judiciary as they had already been given significant primacy in the appointment process in the NJAC Act, than what the Constitution had originally conceived. The paranoia of the judiciary that the appointment process will be taken over by the Executive and filled in by its own toadies was slightly misplaced and they could have interpreted/read down and/or supplanted the NJAC Act to make it valid while retaining the primacy of judiciary.
By striking it down, the judiciary has invited the ire of the nation and of the legal fraternity which is already anguished with many questionable appointments. People on both sides of the debate would agree to this. The judiciary can redeem itself by making some procedural changes like after considering all names who are eligible and after taking the views of the Chief Justice of the concerned High Court, two Collegium members/Chief Minister/the Governor of the concerned State as well as the views of the Law Minister and the I.B. In case there is dissent by any participant or in the Collegium itself, the matter should be decided by a reasoned order. Apart from the Law Minister, the Supreme Court Collegium should seek the views of the two eminent persons connected with the concerned State High Court i.e. former Chief Justice of the High Court or former Advocate General of the State or reputed Senior Advocates who would be construed to be two “eminent persons” for the purpose of the appointment to that High Court. In case of Supreme Court, they should seek the views of the former Chief Justice or Retired Judge of the Supreme Court and former Attorney General or Former Solicitor General or reputed Senior Advocates. Let me mention here that who can be more eminent persons in this regard than Mr. Harish Salve or Mr. Fali S. Nariman or Justice Lodha. The qualification for being consulted is that they must be retired from judiciary and/or Human Rights Commission and/or reputed senior advocates not holding any Government appointments.
It may kindly be kept in mind that Article 124(1) of the Constitution conceives of Consultation with such of the judges of the Supreme Court or High Court as the President may deem necessary. Article 217 does not ipso facto provide such provision but it also did not provide for collegium. After the process is gone through and the appointment is cleared by the Collegium, it may be sent to the President. If the President returns the appointment, due weight may be given to the views of the President and the matter should be reconsidered by the Collegium and the reasons for returning must be probed and given importance. If after probing the Collegium comes to the opinion that the reasons are not correct or germane or based on extraneous political considerations, it may reiterate its recommendation and the President then shall appoint.
The following could possibly be considered as some of the criteria for appointment of Judges to the High Courts.
1) He or she must be between 45 and 58 years of age, be it a District Judge or Advocate practicing at the High Court.
2) For a lawyer to be eligible he or she must have annual turnover of at least 20 lakh gross and 10 lakh net in a normal High Court and double the amount in a Charter High Court.
3) He or she must have appeared in at least 500 matters in the High Court.
4) The Chief Justice must be of the same High Court. The practice of transferring Chief Justice outside his home state was started as it was found that the Chief Justice was recommending Judges on extraneous considerations. But this system has greatly reduced the role of the Chief Justice in the Collegium system as he is not familiar with the lawyers practicing at the transferred High Court. Hence, it is desirable to have the Chief Justice of the same State.
5) The outside Chief Justice also has the following problems (i) being transferred or displaced at a later stage, he or she has family dislocation (ii) He takes time to get used to local language, customs, climate and food (iii) He has no interest in the High Court and his only interest is what would be the convenient steps to be elevated to the Supreme Court. The transferee Chief Justices are often pliable but certainly prepared to pay a price and sacrifice their conscience in matters of recommendation to achieve their greater objective i.e. to reach the ramparts of Redfort. Thereafter they boast they have batted straight in life.
6) Since we have some minnow High Courts bad Chief Justices can be parked there and the next senior most can be the Acting Chief Justice.
7) The greatest role is played by the Supreme Court Judge of the State. Whether the appointments are good or bad or average depends primarily upon the Judge of the Supreme Court from the concerned State. Some prefer only cronies, some prefer merit with loyalty, some prefer merit only. But, however, since he plays a role behind the curtain he does not get overtly exposed. His views must be kept on record.
In the aforesaid backdrop, my humble submissions would be to restore the principles and spirit of the NJAC Act by making the entire procedure of appointment of Judges fair and transparent through a meaningful role of the executive thereby making a system in which a person feels he has been properly considered for judgeship. Eminent persons like former CJI, former Judges of Supreme Court, former Chief Justices of the High Courts, former Attorney General, former Advocate Generals and reputed senior advocate of the Supreme Court and High Courts are involved in the process of appointment.
The author is a practicing Senior Advocate at the Orissa High Court. The article was originally published at saurjyakantapadhi.blogspot.in. The views expressed in the article are solely those of the author and do not in any way represent the views of www.odishasuntimes.com