Is former SC judge Kurian Joseph right in regretting striking down the NJAC act?

Justice Kurian Joseph, a former Supreme Court judge, has expressed ‘regret’ for his view on the National Judicial Appointments Commission, which he and three other judges struck down in 2015 as unconstitutional. The NJAC was brought in by the Modi government as a replacement for the collegium system for the appointment and transfer of judges of the Supreme Court.

ThePrint asks: Is former SC judge Kurian Joseph right in regretting striking down the NJAC act?

NJAC was an ugly compromise that strengthened the government and political elements

Rajeev Dhavan
Senior advocate

Former Justice Kurian Joseph may have changed his mind on the National Judicial Appointments Commission (NJAC), but questions about the alternative remain. The “political” method with consultation of the Chief Justice collapsed after the 1990s. In the last 20 years, the “judicial” collegiums method with consultation of the central government has led to intimidation of the collegiums.

If finance minister Arun Jaitley wants to know who intimidated the judicial collegiums, the answer is it’s his government led by Narendra Modi. The NJAC, brought in through a constitutional amendment, was struck down precisely because it was an ugly compromise strengthening the government and political elements. Little would be left of India’s Constitution if its judicial custodians are selected politically.

Prime Minister Narendra Modi’s government blocked Chief Justice Tirath Singh Thakur, tried to co-opt Chief Justice Jagdish Singh Khehar, and forced Chief Justice Ranjan Gogoi’s collegium decisions. The Supreme Court of India is the most powerful court in the world. But as its power and prestige increases, its standards are falling. The biggest danger is in the saffronisation of the High Court and the Supreme Court, as also attempts to weaken it. We need a new system without the faulty NJAC. In the light of the latest sexual harassment case against the CJI, we also need a judicial accountability complaint system to ensure that complaints against judges are dealt with as they are in other countries.

Remarkable to hear Justice Kurian publicly regret about his decision to agree on striking down NJAC

Prashant Reddy
Senior Fellow, Vidhi Centre For Legal Policy

It is rare to hear retired Indian judges publicly regret judgments they had penned during their tenure. It was thus remarkable to hear Justice Kurian Joseph publicly express regret about his decision to agree, in 2015, with the majority of the Supreme Court bench that struck down the constitutional amendments that had brought in the National Judicial Appointment Commission (NJAC).

The NJAC was meant to replace the opaque collegium system of judicial appointments that has been in place since 1993, when the Supreme Court decided to misappropriate for itself the power to appoint judges. This move to misappropriate the power of appointment has been seriously suspect as it went against the plain text of the Constitution and several decades of convention that gave the executive a prominent say in judicial appointments.

Over the years, the collegium system has lost credibility for a variety of reasons. When Parliament unanimously decided to replace the collegium system by amending the Constitution, it was a reflection of a democratic consensus of the Indian people. The fact that unelected judges decided that “We the People…” had no right to amend our own Constitution is a pointer to the absurdities of the Indian democracy.

NJAC is in no way a solution to the executive’s interference in the affairs of judiciary

Bishwajit Bhattacharyya
Senior advocate, Supreme Court and ex-Additional Solicitor General of India

I am respectfully in disagreement with former Justice Kurian Joseph. The National Judicial Appointments Commission (NJAC) order was exemplary because the very concept of NJAC is flawed. The NJAC gives primacy in appointment of judges to the executive, which goes against the very grain of the Indian constitution. Judicial appointment is the very cornerstone of the independence of the judiciary, which is immutable and must not be allowed to be diluted under any circumstances.

The collegium system, on the other hand, has fared quite well in the past and has stood the test of time. It is, of course, true that the collegium needs to protect itself from any and all interference from the executive. Particularly, the appointment of KM Joseph, and how it was stalled for months needlessly, exemplifies how we must actively resist all influence of the executive.

It is since that incident, that there is a growing public perception against the collegium. This is why the collegium needs to thwart any such designs and attempts by the executive, and maintain utmost independence. The executive will always try and interfere; but the collegium in one unanimous voice must speak up against such interference.

That said, the NJAC isn’t in any way a solution to this interference.

NJAC was hastily pushed through but it aligns to Constitution’s vision more closely than the collegium

Suhrith Parthasarathy 
Advocate, Madras High Court

Justice Kurian Joseph, who authored a concurring opinion as part of a 4:1 majority of the Supreme Court bench that struck down the National Judicial Appointments Commission (NJAC), in October 2015, has expressed regret over his judgment. But his disappointment, it appears, stems from the court’s failure to take steps to improve the prevailing collegium system of appointments, to make it more transparent, and to provide to it a machinery that would allow it to operate with greater efficiency.

But any such improvements to the collegium, even if they do fructify, will not remove the flaws inherent in the court’s judgment. In quashing the NJAC, the court proceeded on a belief that primacy of judicial opinion in making appointments to the higher judiciary was a part of the Constitution’s basic structure. What it failed to see was that its view ran counter to the framers’ ideas.

In determining where the power to appoint judges must lie, the Constituent Assembly believed that vesting such authority with the judiciary would flout democratic norms. This is why the Constitution provides for a consultative process involving different authorities. The NJAC may have been hastily pushed through. But its ideas are more closely aligned to the Constitution’s vision than the collegium, whose workings have proved wholly undemocratic.

By Fatima Khan, journalist at ThePrint.

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