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Future post-NJAC judges having to pass ‘national security’ test is a dangerous can of worms

Beyond the most obvious cases, is ‘national security’ even a term required in judicial selections?
Beyond the most obvious cases, is ‘national security’ even a term required in judicial selections?

The Supreme Court collegium has finally completed its year-long-awaited draft of the memorandum of procedure (MOP), which would govern how judges are appointed in future, reported the The Times of India’s Dhananjay Mahapatra earlier today:

The collegium, headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur agreed to the contentious national security clause that the Centre had insisted upon as one of the grounds for determining the eligibility of judges for appointment to the apex court and high courts.

TOI had reported in its edition on February 27 about the possibility of an understanding on the Centre’s stance that “national security” ought to be part of the criteria to determine eligibility for appointment as judges.

The completion of the MoP paves the much overdue way for filling up the long-pending vacancies in high courts.

Opinion: Terrors of justice?

No one will object to the idea that future judges should not present risks to national security.

But while the judiciary has been plagued by many problems, squads of terrorists being appointed to the bench was not one of them.

’National security’, other than actually being about securing the state, is already a fig leaf that has regularly been used by governments the world over to stop activities they disapprove of, stifling the work of NGOs and journalists (a ready example being the UK and US’ persecution of reporters and their sources in relation to leaks and revelations of government’s digital spying).

Including national security as a factor in judicial appointments now, carries the obvious risk of being abused as a catch-all by future governments to prevent the appointments of any judges they don’t like.

The Supreme Court’s collegium appears to have agreed with that as a potential risk, according to the Times report, which stated:

The source said the collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded. Other sources confirmed that the issue, one of the sticking points, was resolved “in the best possible way”.

Sure, the collegium would have had its back against a wall after the deadlock that has gone on way too long and damagingly. And getting reasons whenever a rejection takes place for national security reasons is better than nothing.

And while perhaps safeguarding against the most egregious abuses of ‘national security’ as a reason against appointments, the effective government veto could very well end up being used against judges with more liberal views. For instance, an aggressive government might want to make the argument that judges present a security risk if they are not hawkish enough on terrorists, by having perhaps overturned death penalties of convicted terrorists?

Will the temptation exist to exclude on national security grounds judges who’ve been on a warpath with governments over human rights abuses under the Armed Forces (Special Powers) Acts (AFSPA)?

For any judges wanting to ascend the career ladder of the judiciary, the national security proviso could end up being a real and lingering concern in the backs of their heads, and that could have a lasting impact on the direction future jurisprudence will take when keeping in check the power of the state.

Photo by Paul Downey

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