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BW Businessworld

Justice For None

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At the end of one year of the Modi dispensation, justice for all is still a distant dream. The measure of the gap between promise and delivery is the index of non-performance. ‘Justice for all’ was yet another Modi slogan before the elections and ‘justice for none’ is the outcome after one year.
The Modi government has not even begun to address issues relating to the justice delivery system. The 3 crore pendency of cases, the alleged increase in levels of corruption within the judiciary, the inability of the common man to get an effective judicial redressal system, delays of court procedures, the inability to set up ‘commercial courts’, increasing costs involved in the justice delivery system and other related issues are not on the government’s radar. 
The uppermost priority of this government is to exercise control over appointments in the higher judiciary. It has proposed changes to ensure that the executive holds the trump card in matters of appointment.
Article 124 (A) has been inserted in the Constitution by setting up a National Judicial Appointments Commission (NJAC) consisting of the Chief Justice of India, two senior judges of the Supreme Court next to him in hierarchy, the Union minister of law and justice and two eminent persons to be nominated by a high-powered committee. 
Article 124 (B) provides for the NJAC making recommendations for the appointment and transfer of judges of the higher judiciary. These constitutional amendments suggest that neither the judiciary nor the executive will have primacy in the appointment of judges to the higher judiciary.  
However, the National Judicial Appointments Commission Act (the Act of 2015), which too has been passed and notified, gives a veto power to any two members of the commission if they do not agree with the recommendations of the NJAC. This suggests that if the law minister along with an eminent person objects to a particular nomination by the NJAC, it cannot go through. This veto power of the executive will be a lethal weapon in its hands to block any appointment which the government of the hour perceives to be ‘inconvenient’.  Also, the fact that the judiciary does not have primacy in matters of appointment strikes at the root of the independence of the judiciary.
Instead of addressing the issues that affect millions of people in this country who are crying for justice in a system which is tardy, slothful and inefficient, the government has chosen to spar with the judiciary. Its intent and priorities are clear. It is least concerned with the travails of the Aam Aadmi in accessing justice and more concerned with its own primacy in the appointment process. This is not just reflective of its priorities but exposes its desire to change the system to its advantage so that in the remaining period of its term, it can hope to fill the judicial corridors of power with incumbents who are perceived to be closer to this dispensation. This augurs ill for our judicial system.
Some might argue that the same veto can be exercised by the judiciary if the government of the day wishes to push particular individuals to man the higher judiciary. The logic of that argument is weak. It breaks down at the altar of our experience. We have instances from the past where those responsible for appointment to the higher judiciary have succumbed to executive pressure. The results stare us in the face. Together the executive and the judiciary will make compromises to accommodate favourites at both ends and the justice delivery system will be the casualty.
While we can be critical of the intent of this government in pushing its agenda in the manner suggested above, we must be mindful of the tardy manner in which the collegium system has worked. Far from passing the test of scrutiny with flying colours, its working has disappointed one and all.
Its fundamental flaw is that it has destroyed the independence of judges in the high courts, especially those who aspire to be elevated to the Supreme Court. They look up to the judges of the Supreme Court and seek their approbation.  They lobby with judges as well as ministers in the hope that they be elevated. Sitting judges have in the past been successful in appointing those whose proximity with them is a matter of public knowledge. The collegium system has not done justice in discharging its responsibilities.
So what is the answer?  If we are unhappy with the collegium system, we need to substitute it with a more effective mechanism. The NJAC provides a remedy, which, perhaps, is worse than the ailment. The fact is that the judiciary is loathe to give up its power to appoint members of the higher judiciary. This is why they have resisted the attempt to refer the matter to 11 distinguished judges to have a relook at the 1993 judgment in which the judiciary arrogated to itself the power to appoint members of the higher judiciary. If the judges uphold the NJAC, it will destroy the substratum of the 1993 judgment. If they strike down the NJAC, it will be difficult to revive the collegium system.
The road ahead is difficult. Solutions will be hard to find but executive interference in the appointment process must be rejected.
I wonder why the Modi government took up this issue as its primary concern when millions in India are waiting for justice. Yet another instance in which Modi has not been able to usher in the Achche Din he promised.
The author, Kapil Sibal, is an eminent lawyer and former Union law minister
(This story was published in BW | Businessworld Issue Dated 15-06-2015)