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Of Katju, Modi and the NJAC: Politicians’ perfect plan (and a collegiate waste of time)

The National Judicial Appointments Commission (NJAC) was either an example of a perfect campaign by politicians or of massive good luck, argued Kian Ganz in the Mumbai Mirror on Sunday.

Let's face it: if you want to run a country, democracy is an utter pain in the ass. First off, there are those pesky elections every few years, which have encouraged the flowering of certain breeds of promises, politicians, dynasties and marketers who can optimise the mechanics of getting enough people to vote for you.

And then, once you're in power, democracy constantly thrusts checks and balances in your face. While most politicians no doubt understand the necessity of (and historical warnings against) preventing anyone from wielding absolute power, in practice you'd rather do without.

You have all these great ideas and best-laid plans for the betterment of the people and the country, and then the Supreme Court comes along and strikes down all your hard work by deciding your new law was "unconstitutional".

Even that system hasn't always worked. During Indira Gandhi's emergency, a terrible breakdown of democracy as a system if ever there was one in India, the Supreme Court did very little to protect what was trusted to its care.

When the Supreme Court created the collegium system for itself in 1993 after a series of famous court cases, it was, at least in spirit, a reaction to the potential abuse of power by politicians: it was meant to ensure the independence of the judiciary and its ability to act as guardian to the constitution, even under pressure.

In practice it resulted in the following: the senior-most judges of the Supreme Court sit in a room together and secretly decide who gets to become a judge. In making this decision, they would draw on reports by intelligence agencies, the opinions of other judges, court-corridor gossip, and their personal perception of candidates.

The great thing about the collegium system was that it was fairly insulated from the political process.

The bad, was unelected judges deciding in secret about creating more unelected judges, which does not look very democratic and ended up with some infamously terrible or corrupt judges.

Even the previous UPA government had a draft finished and ready to go to become law that somehow never really made it.

But while its record isn't perfect, the judiciary has countless times stood up for the rights of the oppressed and minorities in the face of unfair laws or the abuses of laws by the powerful. The Supreme Court's ban on iron ore mining in Goa, for instance, was a slap in the face of the big mining corporations and the Goan government.

Cases like these are perhaps a big reason that the Modi government had manifestoed and pushed so hard for an NJAC: it wanted to get the judges' noses out of its business of governing and reforming the creaking laws of this country that can retard economic progress.

Otherwise it would certainly be surprising that, the new government, elected on lofty promises of Acche Din and despite its impressive rhetoric, increasingly under pressure from commentators noting its utter lack of miraculous or even tangible results, was in such a hurry to push a JAC through, with so many other, arguably more important issue to tackle to fix India, its economy and judiciary (say pending cases) than judges who are sometimes a bit dodgy.

The NJAC was passed with flying colours and cross-party support on the last days of this session of the Lok and Rajya Sabha, but the process and the brief history of its passage should, at the very least, raise eyebrows.

More recent history

The very recent backdrop to the passage of the NJAC is important. If we're inclined to give the BJP government credit for it, it was a textbook example of a media campaign that met its ends perfectly.

What is the National Judicial Appointments Commission (NJAC)?
Who: Six members - the CJI, two next-most-senior Supreme Court judges, the law minister and two "eminent" persons, appointed by the CJI, the prime minister and the leader of the opposition.
What: To decide who will become a judge, with no more than two members dissenting. If the president wants a reconsideration, the NJAC will have to make its recommendation again, with no more than two members dissenting.

Alternatively, it was a fortunate series of events that played directly into its hands.

First, there was the Gopal Subramanium debacle. (Possibly strategic) leaks from the law ministry derailed the collegium's nomination to make him a Supreme Court judge.

And then came Markandey Katju. Katju had always been a loose cannon, even while he was still a Supreme Court judge. When he retired in 2011 and became chairman of the Press Council of India (PCI), he was a force of nature, unleashed and unpredictable.

Apart from literally calling 90% of Indians idiots, he pretty much commented, blogged and tweeted about everything under the sun, until just as suddenly, his social media output plummeted to zero. Katju did not respond to a query on Twitter of why he stopped talking, but according to gossip, *Madamji* and her party, who appointed him to the PCI in the first place, told him to simmer down.

As the BJP won its election in June, Katju came back again with a barrage of blog posts, which had apparently been stored up in his diary for the last year.

And then, mixed in amongst posts about Urdu poetry to views about how the Argentine football team could beat the Germans (he suggested they should shout "Stalingrad" at the Germans on pitch), came a string of explosive posts breaking the unofficial judicial omerta, blowing the whistle on his brothers and sisters of the court. While Katju himself was never on the collegium, he knew the system intimately, having been a judge there and chief justice in Delhi and Madras.

The media rightly and enthusiastically picked up his revelations about the system that had been shrouded in secrecy until then, painting a picture of corrupt judges continuing in their job or even getting elevated, while the collegium was bullied by the government, or repeatedly either encouraged those judges or looked the other way, powerless to fix the system.

Even those widely considered as thoroughly upstanding judges, such as ex-CJI SH Kapadia, did not emerge unblemished by his allegations (Katju, by contrast, painted himself as a paragon of judicial virtue in his own depections).

I don't think it should be suggested that Katju was not sincere in his own way in revealing the no-doubt existing rot int the system or doing the government's express bidding, but the the government certainly did not interfere. Recent reports from government sources that Katju's tenure as PCI chairman might not be extended when it runs out, should be taken with a pinch of salt. For one, even if Katju has been more than helpful to their aims recently, this government might suspect that Katju is too wild to be kept as an obedient pet with post-retirement sticks and carrots.

Nevertheless, the timing of the revelations and the media's enthusiasm played right into their hands and, no doubt feeling emboldened by the prevailing mood, it tabled a JAC that surprised most observers both in speed and content.

What the draft cheekily proposed to replace it with, however, was a system giving the law minister almost unilateral backdoor power to effectively veto any judicial appointment. Ex-UPA law minister Veerappa Moily managed to squeeze in an amendment to reduce that veto power slightly, meaning that now two out of six members' dissent was required to scupper an appointment, but no party seriously objected its passage in parliament - after all, few politicians would pass up a chance to muzzle those interfering judges.

Senior advocate Fali Nariman too has been scathing of the Act, and former UPA law minister Kapil Sibal has now come out saying: "This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. How can you give veto power to any two members of the NJAC? Such a provision can be misused."

The subtext of the NJAC is that politicians can effectively dominate the judiciary (see box). Who is to say that any "eminent persons" appointed won't be bullied to toe the government or politicians' lines? Or that one of the three judges won't be (just as they allegedly were on the collegium)? And that future judges, knowing that their appointment will at least indirectly depend on two people selected by the prime minister and the leader of the opposition. Will this result in high court judges less likely to rule against the day's government, for fear it could affect their chances of promotion to the apex court (just as some alleged it had killed Gopal Subramanium's appointment to the Supreme Court)? And will it be transparent?

"The collegium has not not been transparent and there is a certain belief in a lack of information," coments Jindal Global Law School vice chancellor Raj Kumar. "But our experience has been that the government-led committees in the past have also not been doing great."

Nariman and Sibal have respectively hinted at and said that they'd file an appeal with the Supreme Court to strike down the Act as unconstitutional. Before his lordships and ladyships, they would certainly likely to find sympathetic ears. [Update: Challenges have now been filed in the Supreme Court]

And if the Supreme Court were to strike it down, it would do little to improve the equilibrium and understanding between judges and politicians, and it would have made the NJAC exercise a collegiate waste of time and opportunity.

An edited version of the above was published in the Mumbai Mirror on Sunday.

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