The 16th National Conference of Akhil Bharatiya Adhivakta Parishad held at
Kurukshetra on 26 to 28 of December 2022 requests that steps be taken forthwith to
Revisit the NJAC judgment wherein the proposed National Judicial
Appointment Commission (NJAC) was struck down by the Supreme court. ABAP
feels that while the concept of independence of judiciary is nonnegotiable even by an
inch, the appointments to posts of judges (Chief justices too) in High courts and
Supreme Court and transfers of High Court judges cannot be permitted to be
done in the present ‘style’.
The text of the constitution that provides for Appointment of the Judges to the
Constitutional Court is deceptively simple. They provide for Hon’ble President to
appoint them in “consultation” with the other judges. In constituent assembly Dr.
Ambedkar rejected the proposed idea that consultation process must be understood
as concurrence with the CJI. The constituent makers decided to vest the power of
appointment only with the executive subject to consultation. The experience shows
that between 1970 to 1990, the executive has failed to raise up to the constitutional
ambitions. This led to S P Guptas case however the executive still continued to hold
the power of appointment.
In 1993, after the second judges’ case, the system of collegium started
emerging, the seeds of collegium originate from the Subhas case. In Special
Reference Case the collegium system has taken a concrete shape almost substituting
the effect of Art.124 and Art.217 of the Constitution of India. However, the
experiment with the collegium system was not different from the defects noticed in
the executive appointments. The jurists claim that the “Judiciary has failed the
Judiciary”, Justice Krishna Iyer noted regarding collegium system. “There is no
structure to hear the public in the process of selection. No principle is laid down, no
investigation made and a sort of anarchy prevails”. [The income tax returns, age etc
were incorporated under the guise of guidelines/MOP].
It is said by one of the senior collegium members after his retirement that the
other collegium member use to enter and seek for support for their candidature
therefore a judicial reform was essential in the process of appointment of the
constitutional court judges. Transparency and independence in appointment of
judges is a must. In this background 99th Constitutional amendment introduced and
finally constitutional amendment 99 was adopted unanimously by both houses and
various state legislatures. The Supreme Court in the matter of NJAC judgment has
finally comes to the conclusion that the amendment is unconstitutional however the
Supreme Court has grudgingly noticed the defects in the collegium system. It is
needless to point out that the alternative system even as pointed out at NJAC
judgment were not cured.
ABAP feels that preserving judicial independence is one of the most
challenging task for the nascent democratic states. “Compromising with
independence of judiciary, Nation has to pay heavy Price”. The independence of
judiciary is not only at the higher level but the trial court also. One should not forget
that each Constitutional Court is not subordinate to the other. It is noticed by all
concerned that the decisions of the collegium in Apex court regarding transfers of
high Court judges and posting of senior high court judges as chief justices of high
courts has not been done in the manner befitting the dignity of High Courts. This is
not recent phenomenon. The High Courts which are empowered under article 226
are reduced to status of trial courts. Mere shifting of supremacy is no answer.
Warning bell is ringing against Executive and Judiciary. While selecting the persons
to the posts, Eligibility, Qualification, Suitability and Merit must be the main
considerations. Having regard to the vast nature of this country different section of
the society including gender representation are the basic requirements, amongst
them the best should be selected. Before the public resentment erupts, both the wings
have to act swiftly.
The object of placing the power of judicial appointments in an independent
body consisting of Judicial Heads, Executive, Jurists and the men of high calibre
having sufficient knowledge in the field of justice delivery system should become
the integral part of the commission which is to be headed by the Hon’ble Chief
Justice of India. Having regard to these things the 16th National Conference of Akhil
Bharatiya Adhivakta Parishad held at Kurukshetra on 26 to 28 of December 2022
calls upon all the concerned to take immediate steps to revisit the NJAC
judgement.
