-Karthik Inzamam Prasad
The concern regarding the appointment of the higher members of the judiciary and the debate regarding the implementation has been going on for the past year. The National Judicial Appointments Commission Act, which proposed to replace the Collegium System of judges appointing judges in the higher judiciary, was struck down as unconstitutional by the Supreme Court by a majority of 4:1.
In order to bring a clearer understanding on the various stands taken on the judgement and the Act, and to discuss the various constitutional issues involved as well as to facilitate awareness and deliberation on the system of appointment of judges, the Centre for Constitutional Law, Policy and Governance, NLU, Delhi organised a Panel Discussion on the NJAC Judgment on the 29th of October, in the Moot Court Hall. The panel comprised of members of the faculty including Prof. M. P. Singh, Dr. Anupama Goel, Mr. Niraj Kumar, Dr. Anup Surendranath and Dr. Aparna Chandra. Dr. Chandra moderated the event.
As first raised by Dr.Singh, the question is one concerning the violation of the basic structure doctrine. The basic structure doctrine is used as a kind of litmus test by the Courts to determine whether an Amendment being passed by the legislature goes against the Constitution. Dr. Goel gave a brief overview of the Judgement, explaining the different reasons giving by the judges. She highlighted three main points: that the Act violated the basic structure of the constitution, that the independence of the judiciary implied the primacy of the judiciary in appointment as well, and that the system of reciprocity which executive influence will bring would create a nexus of indebtedness.
Dr.Chandra then questioned the over-emphasis on the primacy of the judiciary, and asked whether the violation of the primacy of the judiciary would really infringe upon its independence. As long as there is no extreme interference by the executive, there would be no harm. There is no binary of either having violated, and thus infringing independence, or having no violation and maintaining independence, unlike what the judges attempted to portray. Putting aside the issue of conflation of primacy and independence, she stressed on the veto powers available to the judiciary and the necessity for the inclusion of eminent people, and the view which they could contribute from outside the system and aid in the removal of the ‘quid pro quo’ happening currently.
Dr. Surendranath disagreed with the arguments made, saying that the consultation of judges was an essential element in the basic structure doctrine. He talked of the downgrading of the judiciary in the matter of appointments which the Act brought in, with few of the members earlier involved even being removed. Another factor to bring down the Act, was that even if Article 124 A were to be declared invalid, a vacuum would be created, and as a result, the President would hold all the power to appoint judges as he wished .
Dr. Kumar, while not questioning the striking down of the Act, said there was a need for change in the process of appointment of the judges in the higher judiciary. He suggested an elaborate alternate system to be put in place, with the judiciary getting the primary say in appointment. He elaborated on the need of eminent persons. saying that that the voices of the people who were not part of this ‘league of extraordinary gentlemen’ should be heard. The discussion was followed by a few questions from members of the audience, and a vote of thanks by Dr. Chandra. The Discussion, organised by Dr. Mrinal Satish and Dr. Chandra, along with Centre Fellows Sanya Sud and Shruti Arora was appreciated by the panelists, faculty, and students alike, and we look forward to many more such discussions on campus that would help improve our understanding of contemporary constitutional issues.
(A previous version of this article misstated the name of one of the organisers. It is Sanya Sud, not Sanya Kumar.)