When it came to a debate on the NDA government’s proposed National Judicial Appointments Commission (NJAC) to scrap the collegium system of appointing Supreme Court and high court judges, top lawyers did not mince words in calling the move utterly “stupid”, aimed at giving primacy to the executive.
Speaking at Mumbai University on Saturday, in what perhaps sounded an univocal cord, the likes of Ram Jethmalani, Iqbal Chagla and Rafique Dada not only detested the idea of NJAC, but also criticised the collegium system of appointments.
The Lok Sabha had, on August 13, 2014, passed the Constitutional Amendment Bill and cleared the National Judicial Appointments Commission Bill 2014 to regulate the procedure.
There is a need to appoint “clean” judges for a “clean” society, said Jethmalani. He, however, added, “Legislature has done no good. It will not be the right remedy for the sickness judiciary is grappling with.”
Jethmalani also blamed the 21-month emergency period between 1975-77 for giving rise to the “biggest fall” in judicial standards. He, however, took a dig at the present BJP government, calling the move an “act of stupidity” on their part.
The commission will comprise six members — the chief justice of India as its head, two senior SC judges, the law minister and two “eminent” persons to be selected by a group consisting the prime minister, leader of the Opposition in the Lok Sabha and the CJI.
Chagla said an “incestuous” collegium system of appointment had “failed us” but the bill was “rushed” through in the Parliament without any debate or discussion.
“The collegium system was completely non-transparent. It was incestuous, wherein judges appoint judges. There are appointments, which are bad, but no one questions. There are transfers, but again no questions are asked,” he said.
Chagla, who has completed 50 years at the Bombay bar, said no questions were ever raised over a judge’s integrity in the past. “Integrity was a given 50 years ago. Now, there is a question on integrity,” he said.
Terming the NJAC “insult to intelligence”, he said, “Eminent? eminent in which vocabulary? Whose dictionary? In place of the collegium system, we need a system which is transparent and not something like this bill which is completely opaque.”
Holding a similar view, Dada questioned the inclusion of two “eminent” persons who will be in the panel and said eminence can be garnered in any field, but that does not mean they can comprise a judicial panel. “The question that we need to ask ourselves is whether it (NJAC) is the right replacement?” he said.
“The present regime in Delhi wants the Constitution to be changed. They want to interpret the Constitution. Constitution will lose its character if this goes on,” said Justice Hosbet Suresh, a former Bombay HC judge.
Girish Godbole, also a former Bombay High Court judge and now a practicing advocate, condemned all political parties for having the same motive – to scrap the collegium system for the fear of judiciary.
“We need a system, which considers ground realities. There are anomalies with the collegium system, but the new amendment is not going to serve the purpose. Expeditious appointments will not be achieved,” said Godbole.
Passing of the bill was an opportunity grabbed by the legislators with both hands, said lawyer and activist Flavia Agnes. She felt it was “integrity” which was lacking in society at large.
“There is no transparency in the process of elevation of judges. There is no integrity in legislation, party politics. Legislations are sold, it is just a matter of money,” she said.
The unanimous passing of the bill though did not augment good for us, a civil society, Agnes said. “If the collegium system did not work, would this new system work?” she questioned. “Justice is a gamble and we all know there is 50 per cent chance of winning cases. Gender-biased, communal and casteist comments are made by judges. We do not have any place to challenge the conduct of judges,” said Agnes.