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In Law WE TRUST; Everything else WE AUDIT
In 1947, when India politically broke free of the English Raj, the sun eventually set on the British Empire. Forty-four years later, in 1991, she unshackled herself from Nehruvian socialism to marry market economy. If 1947 was about political freedom, 1991 was about economic reforms.

Some 25 years later, in 2015, if India enjoys a place under the sun, it’s due to that historic decision in 1991 - a unilateral one taken by a semi-retired politician and executed with élan by a retired bureaucrat. The result is there for all of us to see. It has always foxed me that the extraordinary transformation was brought about by a minority government, headed by a leader who lacked mass appeal.

But all that is in the past. Among the several unfinished agenda of 1991 is the one on judiciary reforms. Of course, we also need reforms in the other pillars of our society, viz the executive, the legislature and the media. More of that another day.  One of the perceived first halting steps towards such reforms has come unstuck.

While the criminal justice system in India moves excruciatingly slow, while law grinds the poor and rich men rule the law, the system nevertheless works. If India is still a vibrant democracy, a good amount of credit should go to the judiciary.  Now, it is nobody’s case, including the chief justice’s, that everything is hunky-dory in the corridors of justice. But the question is: “is interference of Executive the way forward?”

The Supreme Court has answered that question with an unequivocal “No.”  It has, by a majority of 4:1, thrown the National Judicial Appointments Commission (NJAC) Act, 2014 in the trash can, saying NJAC interferes with autonomy of the judiciary and amounts to tampering the basic structure of the Constitution.

It’s time for you to understand why the Apex Court gave a thumbs down to a key measure of judiciary reforms.


The ‘politicians’ in the Commission

If cleared, the NJAC would have consisted of six persons: the Chief Justice of India, two senior judges of the Supreme Court, the Union Law minister and two ‘eminent’ persons. The two ‘eminent’ persons would be nominated by a committee consisting of the Chief Justice, the Prime Minister and Leader of Opposition in the Lok Sabha.  Of the two ‘eminent’ persons, one would be from among scheduled castes or scheduled tribes or OBC or minority communities or a woman.  The NJAC’s  job would be to recommend persons for appointment as Chief Justice and as judges of the Supreme Court and of the High Courts, and also suggest names for transfer of judges from one High Court to another. The twist in the tail is that the Commission cannot recommend a person if any two of its members do not agree to it.

Now look at what that means.  For one, the political class could gang up (in India despite the daggers-drawn relationship, politicians party together when it comes to saving their skin) to ensure that the two ‘eminent’ persons are men of their choice. They, along with the law minister, would constitute 50 per cent of the NJAC.  If two of them veto a name, that’s enough to put the name in cold storage.   It may sound like a doomsday prediction, but one cannot rule it out.  India has seen worse things happen, like continuous parliament washouts over the last 11 years.   Little wonder, the Court saw red at the prospects of the NJAC being split down the middle.

At present, judges appoint judges under the  collegium system that has been in vogue since 1993.  This practice had its genesis in three of Supreme Court judgments, collectively known as the Three Judges Cases. Over these three cases, the court stipulated that independence of judiciary means that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. True the practice may not be perfect, but the Court seemed to suggest that you cannot throw the baby along with the bath water.


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