This article has been written by Sonali Srivastava. Sonali is currently a third-year student in National Law University Odisha.
Again step towards improvement in ensuring justice was made redundant by Supreme Court. Strengthening and polishing the façade of Basic structure of Indian Constitution cannot provide solution for the upcoming skepticism regarding judicial appointment. Constantly rejecting the arguments regarding establishment of Independent Judicial Appointment body or commission, and taking shelter of basic structure of constitution i.e primacy of the judiciary in judges’ appointments, is portraying insecurities and fear of political or executive intervention.
Instances where judge of high court has been elevated to Supreme court simply because being business partner of the son of a former Chief Justice of India or the sister of a former CJI was appointed to Calcutta High Court when allegedly there were much qualified and experienced judges were denied the appointment or Many judges were appointed to the Supreme Court by the Collegium despite the Intelligence Bureau (IB) giving an adverse report on them, gave rise to urgent need to solve much culminated problem in Indian Judiciary. Controversy was again triggered when Justice J. Chelameswar, lone dissenter in the NJAC judgment by writing to the Chief Justice his decision to skip Collegium meetings till a transparent mechanism is ushered in.
The reason behind rejecting the NJAC Act is that it was passed by parliament and judiciary does not want to weaken its supremacy over judicial appointments by giving significant role to executive in appointing judges for higher judiciary. Enforcing principle of separation of Judiciary from executive mentioned in Art 50 of Indian constitution. But there is a need for Independent body to eliminate nepotism and favoritism existing in collegiums system. As Seniority needs to be respected but merit cannot be compromised in appointment of judges.
Recent dismissal of PIL from National Lawyer’s Campaign for judicial transparency and reform depict Supreme Court is still reluctant to bring any improvement in judicial appointment mechanism. Petition emphasized on establishment of Judicial Appointment Commission for judges appointment, free from both executive and judiciary control. Mechanism will try to limit the zone of consideration of judgeship to the few powerful and privileged who have either political connection, who are well-heeled or who have their kith and kin in the higher echelons of the judiciary.
The notoriety surrounding our judges has snowballed with time. India’s judicial system is crippled to the verge of being non-existent; one would expect that the Independent organization would have been welcomed by all.
Supreme Court is loaded with multiple pleas coming which argued against the implementation of the NJAC or an independent body to govern judicial appointments. This has led to a situation where the judges, who can themselves be regarded as a party in the issue, are adjudicating upon its validity. Nemo judex in causa sua (or nemo judex in sua causa) is a Latin phrase that means, literally, “no-one should be a judge in his own cause.” It is a principle of natural justice that no person can judge a case in which they have an interest. So somehow principles of Natural Justice come in conflict with Supreme Court decision in this regard.
Recommendation by the Venkatachaliah Commission can help immensely in setting up of independent body consisting up of five member body of three judicial and two non-judicial members consisting of the Hon’ble CJI and two senior most judges of the apex court, the Minister of Law & Justice and an eminent person.
In my opinion in order to refine recommendations, eminent jurist must replace eminent person and that on recommendation of CJI, Prime Minister and Leader of Opposition, selection of eminent jurist must be made. It is necessary “to secure a selection from a diverse and wider pool of candidates, so as to get a fair and non-discriminatory selection and to ensure public at large that the judges adjudicating upon their cases and determining their rights are selected in the fairest possible way.
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