Rijiju and dhankhar vs sc why the opposition and judiciary must push back against the call to revive the njac

Rijiju and dhankhar vs sc why the opposition and judiciary must push back against the call to revive the njac

The NJAC mechanism has glaring flaws. It does not respect the critical imperative to protect and strengthen the independence of the judiciary.

For some time now, against the backdrop of the mounting pendency of cases, the government has been airing an older grievance against the court in increasingly churlish ways. In 2015, the apex court had struck down an amendment establishing the National Judicial Appointments Commission (NJAC) on the ground that it was unconstitutional — by giving the government the final say on appointments, it undercut the independence of the judiciary. Evidently, seven years on, the government has still not accepted that court decision with good grace — even though it did not file a review petition or a curative review either. Clearly, too, it has seized an opportune moment to hark back to the issue — after a prolonged period when it seemed that the court was giving the executive the benefit of most doubts, the SC has given the impression of pushing back institutionally against an executive that is not above weaponising its large mandate.

The charge against the court has been led by the Union Minister of Law and Justice, Kiren Rijiju, and more disturbingly, by Vice President Jagdeep Dhankhar — dragging his high constitutional office into political controversy, the latter used his maiden speech as Rajya Sabha chairman to target the court by painting a spurious opposition between its NJAC decision on one side and parliamentary sovereignty and the people’s mandate on the other. On Thursday the law minister linked the pendency of cases, at nearly 5 crore, to vacant posts of judges till a “new system” of appointments is evolved and, also, “the long vacation which the courts obtain”. A few days ago, he had described the collegium system as “not accountable” and “opaque”. Of course, the minister has a point — much needs to be done to make a system in which judges appoint judges more transparent and open. But it is also true that the collegium’s problems are not entirely of its own making — the government has consistently put obstacles in its path by sitting on its recommendations for appointments and transfers. Most of all, the answer to an imperfect system is not, it cannot be, the installation of a new one that effectively subordinates the judiciary to executive control.

The NJAC mechanism also has glaring flaws — provisions like two “eminent persons” who do not need any proven knowledge of law or functioning of courts, and the impossibility of a recommendation if even two of the six members disagree, effectively give veto power and the final say to the executive. The procedural design is part of the larger problem — the NJAC does not respect the critical imperative to protect and strengthen the independence of the judiciary. That independence is not just a formal part of the basic structure of the Constitution. It is also an urgent and living need in times when the power of unelected institutions to act as a check on overweening executive power is being disquietingly weakened. The judiciary, which is the centrepiece of the constitutional balance, must be able to act with full independence. It is welcome that the Opposition, which came together to pass the NJAC bill in Parliament in 2014, is now showing signs of a rethink. The Opposition and the court must push back against any attempt to bring back an NJAC that has been struck down by the judiciary.