A Lesser Evil - Collegium Has Grave Deficiencies, But It Compromises Structural Independence of Judiciary Less - The Indian Express PDF

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Home Opinion Columns NJAC Struck Down

A lesser evil: Collegium has grave deficiencies, but it compromises structural independence of judiciaryless
A lesser evil: Collegium has

grave deficiencies, but it
compromises structural
independence of judiciaryless
The judiciary came to the conclusion that the NJAC, as currently
constituted, would be a threat to judicial independence. It is hard to
disagree.
Written by Pratap Bhanu
Mehta
Updated: Oct 17, 2015, 7:22

Comm
ABOUT AUTHOR
Pratap Bhanu Mehta

Pratap Bhanu Mehta is
President, Centre Policy
Research, New Delhi, one
of India's top think tanks.
read more...
KWWSLQGLDQH[SUHVVFRPDUWLFOHRSLQLRQFROXPQVDOHVVHUHYLO

A lesser evil: Collegium

has grave deficiencies,
but it compromises
structural independence
of judiciaryless
Shiv Sena wants to
openly acknowledge that
criminality and
democracy have
beenfused
As India staysaway
OPINION
The judiciary came to the conclusion that the NJAC, as currently constituted, would be
judicial independence.
Ideas Over Methods
The Supreme Courts striking down of the 99th Amendment (National
Appointments Commission act, NJAC) seems to confirm that Indian in
development follows a maxim of its own: Thou shalt meet overreach w
overreach. The judiciary-legislature tussle in India has never been ba
principles. A dominant executive sought to undermine the independe
judiciary in the 1970s. In response, the judges created an appointmen

Akademi protests: Arun
Jaitleys remarks an
insult to intelligence
ofwriters
where they could, as Justice J. Chelameswar writes, exult and frolic in

emancipation from the other two organs of the state. The legitimacy
arrangement, where the judiciary effectively shut out other branches
government, was always dubious on constitutional grounds. We put u

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Parliament, with rare political unity, passed the NJAC act. It was right
grounds. It had the power to pass such a law; and the law was premis
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sound thinking that the appointments process needed to be broadene
column argued (Whom do you trust?, May 14), Parliament overreach
and institutional sense. The composition of non-judicial members and
of the law minister would result in an NJAC that, in all probability, wo
undermine the independence of the judiciary, even if it possibly made
amenable to outside input. Parliament should have been more carefu
legislation that could bring outsiders into the appointments process in
did not raise the spectre of political dominance. The attorney general
Yakub Memon: All You
Need ToKnow
generally free of nuance, added fuel to that fire. Many had hoped that
would give due deference to what Parliament was trying to do, acknow
there is a serious problem with the current arrangement but possibly
safeguards by reading down the legislation in some way. This is alway
because it also involves an overreach of sorts re-reading legislation
went the whole way, declaring the NJAC unconstitutional with a 4-1 m
Fali Nariman on judicial
clean chit to Narendra
Modi over the
Gujaratriots
The judiciary came to the conclusion that the NJAC, as currently const
be a threat to judicial independence. It is hard to disagree. The judgm

reasoning is quite careful. There is a lot of technical detail that needs
discussion. But the core argument is this: The judiciary has establishe
principle of the independence and primacy of the judiciary on severa
Since this matter was settled, there was no need for reference to a hig
and Parliament should have taken that settled doctrine as a frame of r
judiciary believes that judicial independence cannot be maintained w
things: First, the primacy of the judiciary in the appointments process
and more controversial claim is that judicial primacy is challenged an
independence impugned if the chief justices views can be rejected by
on grounds other than dubious antecedents. This is overreach. Justi


Khehar does as clever a job as possible of saying that under the curren
also, there is executive participation. In a delightful historical aside, h

tables on those who invoke B.R. Ambedkars authority to suggest that
be mistrusted more than the executive.
Where he overreaches is in the inference that inputs from non-judicia
should be confined to such things as character and antecedents, not ju

It is not clear why only judges can give inputs on judicial quality.
The other interesting issue surrounds the invocation of basic structur
Chelameswar in his dissent seems to suggest that the basic structure d
here because this matter concerns institutional design, not individual
judicial independence is a core value, so is an efficient and well-funct
judiciary. And his starting point is that the current system does not m
objective. He also questions the assumption that the primacy of the ju
necessarily mean better protection of constitutional values. He is corr

his fellow judges for creating a discourse where politicians cannot be
where trust in judges should be self-evident. In short, there is no emp

to trust the judiciary more than the executive.
How should one think of this issue? The historical narrative that both
and the dissent rely on can cut both ways. But Justice K. Joseph gets th
institutional logic right. The issue is not whether in the past judges or
have better served the cause of liberty. The issue, as he puts it, is whet
current NJAC institutional design would lead to a kind of adverse stru
bargaining. Given the voting rules of the NJAC and the presence of th
minister, this was a likely outcome.
The justices have basically opted for institutional caution. The presen
grave deficiencies, in terms of efficiency, accountability and even com
it compromises the structural independence of the judiciary much les
a non-judicial or executive dominance could jeopardise that structura
independence. And the judiciary also has a point that it is not clear th

appointments processes with greater executive input are giving better
But the judiciary has been forced to acknowledge its own faults. Even
the majority, like Justice Joseph, is scathing on this. This suggests a rue
opportunity. The politics of excess, the lack of full application of mind
bipartisan legislation, makes institutional resolutions harder. Parliam
opportunity to reform the system in a convincing manner. If it had be
modest, not challenged judicial primacy, and shown how its reforms w
improvement, it could perhaps have achieved a more participatory pr

tenor of arguments would have been different. Instead, it heightened
courts exercise of near-exclusive prerogative in response is not ideal
are reasons to doubt its capacity for reform. But it tells you something
mess Indian institutional life is in that to preserve institutions require
them. We choose a lesser evil to prevent a greater evil. The judiciary i

citizens will see this judgment that way.
The writer is president, Centre for Policy Research, New Delhi and con
editor, The Indian Express

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Give your rating:
Average: 2.9 stars from 22 ratings
40 comments
ME
What is your opinion?
Name
Email

SK
Sumit Kumar from Jamshedpur
There is a need of transparent appointment process in the judiciary.

time,there is also a need of maintaining the judicial organ independent.Ther
constructive debate on the appointment process.
about 23 hours ago
(0)
(0) reply(0)
San Man from Goderich

990
Those supporting the judicial autocracy are themselves attacking demo

dictatorships around the world have curtailed or defeated democracy
elected judges as their henchmen. Many opponents of democracy ha
democracy itself by equating it with corruption - this has always been
Pakistan by supporters of military dictatorship - whenever they want to sup
military coup, they start praising the judiciary and condemning elected
corrupt. It's important for India as a developing country to avoid suc
continuing to support elected leadership over unelected authorities. We d
become another Pakistan.
a day ago
A
2525
How should the Dinakarans be dealt with, ideally before they are appointed
proclivities become manifest ?
20970
(0) reply(0)
Excellent Article that has brought the issues succinctly to the fore.
(0)
(0) reply(0)
Shrikant from Airoli
Jusicary is worried whether they will ever able to see clean in their life time
ever heard verdict on Ayodhya on our life Sikh Riot cases. We must ma
answerable. Thye keep on asking questions to Govt and evey institute. It's n
thye hv to stand up on the bench and anweabld for delays in so many case
died but our Judiciary could not give justice to them. And lastly what ab
corruptions fm belif to Chief Justice Ievel in Judiciary ??
a day ago
(0)
RSR Murty from Richmond
a day ago
(0) reply(0)
Ashok from Ulhasnagar
a day ago
RM
(0)
(0)
(0) reply(0)
Bharatk from Delft
Judges are milkers, they milk the common masses and keep cases pending.
not accountable to anyone. These fellas thinks world is blind. They have n
they can not give justice to masses. Most time they spend protecting cine s
politicians, bureaucrats, and other elites. If 100 percent support, parlia
reform judiciary then what? A new constitution committee must be setthese injustice creatures under the law and peoples law.

these injustice creatures under the law and peoples law.

a day ago
(0)
(0) reply(0)
Anandap from Thiruvananthapuram
I do not understand when 3 crores of cases in courts pending for years, w

about discussing superiority complex of Judiciary over legislature or leg
judiciary! For sixty five years since independence, we have been discussing,
bringing bills for reforms but our ivory tower sitting ruling classes will never
things for common man's justice!
4130
a day ago
R
630
(0)
(0) reply(1)
Rohit from Mumbai
Absolutely. You nailed it. Common man only gets date of next hearing..
continue for the next 20 years (leaving out the "appeal" part). Tareek
tareekh pe tareekh!!
a day ago
(0)
(0) reply(0)
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Home Opinion Columns NJAC Struck Down

A lesser evil: Collegium has

Pratap Bhanu Mehta

A lesser evil: Collegium

Ideas Over Methods

The Supreme Courts striking down of the 99th Amendment (National

Appointments Commission act, NJAC) seems to confirm that Indian in

development follows a maxim of its own: Thou shalt meet overreach w

overreach. The judiciary-legislature tussle in India has never been ba

principles. A dominant executive sought to undermine the independe

judiciary in the 1970s. In response, the judges created an appointmen

where they could, as Justice J. Chelameswar writes, exult and frolic in

arrangement, where the judiciary effectively shut out other branches

government, was always dubious on constitutional grounds. We put u

because it seemed to have the effect of securing judicial independence

own cause. Unaccountability, rather than independence, became the b

The judge who dissented:

The judge who dissented:

sound thinking that the appointments process needed to be broadene

column argued (Whom do you trust?, May 14), Parliament overreach

and institutional sense. The composition of non-judicial members and

of the law minister would result in an NJAC that, in all probability, wo

undermine the independence of the judiciary, even if it possibly made

amenable to outside input. Parliament should have been more carefu

legislation that could bring outsiders into the appointments process in

there is a serious problem with the current arrangement but possibly

safeguards by reading down the legislation in some way. This is alway

because it also involves an overreach of sorts re-reading legislation

be a threat to judicial independence. It is hard to disagree. The judgm

principle of the independence and primacy of the judiciary on severa

and Parliament should have taken that settled doctrine as a frame of r

judiciary believes that judicial independence cannot be maintained w

things: First, the primacy of the judiciary in the appointments process

and more controversial claim is that judicial primacy is challenged an

independence impugned if the chief justices views can be rejected by

on grounds other than dubious antecedents. This is overreach. Justi

also, there is executive participation. In a delightful historical aside, h

Where he overreaches is in the inference that inputs from non-judicia

should be confined to such things as character and antecedents, not ju

The other interesting issue surrounds the invocation of basic structur

Chelameswar in his dissent seems to suggest that the basic structure d

here because this matter concerns institutional design, not individual

judicial independence is a core value, so is an efficient and well-funct

objective. He also questions the assumption that the primacy of the ju

necessarily mean better protection of constitutional values. He is corr

where trust in judges should be self-evident. In short, there is no emp

current NJAC institutional design would lead to a kind of adverse stru

grave deficiencies, in terms of efficiency, accountability and even com

it compromises the structural independence of the judiciary much les

a non-judicial or executive dominance could jeopardise that structura

appointments processes with greater executive input are giving better

opportunity. The politics of excess, the lack of full application of mind

bipartisan legislation, makes institutional resolutions harder. Parliam

opportunity to reform the system in a convincing manner. If it had be

improvement, it could perhaps have achieved a more participatory pr

mess Indian institutional life is in that to preserve institutions require

them. We choose a lesser evil to prevent a greater evil. The judiciary i

Give your rating:

Average: 2.9 stars from 22 ratings

What is your opinion?

Sumit Kumar from Jamshedpur