On 16/10/2015 a five judge bench of the Supreme Court by 4-1 majority struck down National Judicial Appointments Commission and restored collegium. Judges J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Goel held that the Constitution (99th Amendment) Act , 2014 which authorised National Judicial Appointments Commission Act is unconstitutional. Judge J. Chelameswar dissented.
This verdict is unconstitutional and a case of judicial tyranny. Constitution does not speak of collegium. The trial was loaded in favour of judiciary. In a dispute between executive and legislature on one side and judiciary on other side on who should appoint judges, judiciary decided in its favour. It is like in a cricket match between two teams, umpires are players of one team. It is like in an Australia versus India Test, Ricky Ponting saying Sourav Ganguly is out.
NJAC had provision for three judges consisting of Chief Justice of India and two senior judges of Supreme Court in a six member panel. Other three were Law Minister of India and two eminent persons. CJI had a say in the selection of two eminent persons. Judges did not want 50% + power. They wanted absolute power. Power corrupts. Absolute power corrupts absolutely.
The government should bring another amendment and do away with any role for judges in appointment of judges. Judges of Supreme Court should be appointed by President after approval by House of the People (Lok Sabha). Judges of High Court should be appointed by Governor after approval by Legislative Assembly. States that share High Courts should have a High Court each.
Lawyers who opposed NJAC are a strange mix. Fali Nariman in one TV interview said there is no basic structure of the Constitution. The judges invented it. Then he argued NJAC violates basic structure of the Constitution. He got bail for Jayalalitha. Ram Jethmalani has defended criminals and engaged in character assassinations. Prashant Bhushan had said 8 of 16 former CJIs were corrupt and given their names in a sealed envelope to Supreme Court. Ashish Khetan had accused him of running PIL industry.
Some parts of the judgment had no relevance to the matter. There were references to Lal Krishna Advani’s statement that forces that could crush democracy were now stronger than ever before, and resignations of Governors with the change of government.
J. Chelameswar wrote the collegium system has become a euphemism for nepotism where mediocrity or even less is promoted. He did not agree with other judges that primacy of the judiciary in appointments of judges is a basic structure of the constitution. The exclusion of the executive has no parallel in any other democracy and it would be destructive to the basic structure of checks and balances. There is no accountability in collegium. The records are out of reach of any person except CJI.
One judge who was Chief Justice of Calcutta High Court had written that he was not promoted to Supreme Court because he did not support Altamas Kabir’s attempt to make his sister a judge of Calcutta High Court.
The collegium was invented by judges of the Supreme Court by their creative interpretation of the Constitution in 1993. They turned consultation into consent and CJI into five member collegium. Justice Jagdish Sharan Verma wrote the majority judgment. Later he spoke against the collegium system.
Many people have lost faith in the judiciary. Some said so when a judge of Karnataka High Court acquitted Jayalalitha in a case. Some lost faith after a three judge bench of Supreme Court did not jail Ansal Brothers for Uphaar fire tragedy in which 59 persons lost their lives. Instead they told Ansals to pay 30 crore rupees each. This judgment was like a khap Panchayat judgment.
The judges of Supreme Court want accountability and transparency for all except themselves. In a case of making assets of judges public they appealed to Delhi High Court. They lost the case and appealed to themselves.
