Former Supreme Court judge Justice Kurian Joseph, who was part of the Constitution Bench that in October 2015 held the National Judicial Appointments Commission (NJAC) unconstitutional and struck down the NJAC Act by a 4:1 majority, on Thursday said he “was beginning to regret” his view on the commission. The NJAC was meant to replace the existing Collegium system to appoint judges to the higher judiciary.
Justice Joseph said the majority NJAC verdict, where the sole dissenter was Justice Jasti Chelameswar, was “absolute”, and that the Collegium system to appoint judges to the higher judiciary is “defective and needs to be streamlined”.
“The question is what time a judge is elevated to the Supreme Court. That is the whole difference. You can design everything by bringing a person of your choice, so that he will become the Chief Justice or he will be in the Collegium. All these are possible. And that is why I said that absolute independence of the judiciary is required. But the way things have happened in the recent past, in the matters of appointment and transfer, I don’t… how many years it took Justice J S Verma to say that he regretted writing that judgement (Second Judges Case). For me, it is happening in just three-four years after having written that (NJAC) judgment. I should be saying that I have started regretting, in so many words, that it is so absolute. The other way would have been better. The way independence has been affected in the matter of seniority, delay,” he said.
Justice Joseph and Union Finance Minister Arun Jaitley were in a conversation at the launch of a book ‘Independence & Accountability of the Indian Higher Judiciary’, written by Arghya Sengupta, the head of think tank Vidhi Centre for Legal Policy.
“As far as Collegium is concerned… I made scathing criticism of the Collegium (in the NJAC judgment). Hardly anything has been done to improve the Collegium system. We spoke about the secretariat. But there is no secretariat. My suggestion on improvement of Collegium has not been done. Only improvement is that resolutions are uploaded. This is why I started regretting. According to me, it has gone to worse… the existing system is defective and it needs to be streamlined,” Justice Joseph said.
Discussing the topic of the independence of the judiciary, Jaitley said a “process of mass intimidation of the judiciary” has begun through social media.
“A process of mass intimidation of the judiciary has begun. And it has not begun from the executive. If you look at the social media… If sitting judges can say about each other, then why cannot I… you also have frivolous impeachments filed only to intimidate the judges,” he said.
Jaitley said a “credible mechanism” is required to protect honest judges against whom allegations are levelled. “The mass intimidation through social media is the single greatest threat to judicial independence… and the judiciary of the country has survived because of honour… and if you look at the last five years, how many attempts have come from the government (to intimidate). The threat has come from other instruments of the society. Judges are gracious and take with a smile. They don’t object to it. They are magnanimous not to use contempt powers,” he said.
“We are reaching a stage where people love making allegations… a judge is completely handicapped, and reputation can never be retrieved back. And therefore, you probably require a credible mechanism… with judicial primacy. It should have participation from other sections of the society, and that should be a process, that has come to the protection of an honest judge and should be able find out who is the outlier. That only can save the independence of the judiciary,” Jaitley said.