Union Law Minister DV Sadananda Gowda said today that the independence of the judiciary was not undermined because it did not have primacy in the membership of the National Judicial Appointments Commission (NJAC).
In an interview to India Today Television, the minister said the independence of the judiciary begins after judges are chosen. It’s not connected with how they are chosen.
“Judges should not appoint judges,” he said, adding that “appointment of judges is not part of the judiciary”.
The belief that because the committee that chooses eminent comprises the prime minister, the chief justice and the Leader of Opposition in Lok Sabha (LoP) it was dominated by politicians and, therefore, politically rather than judicially acceptable eminent people will be chosen, is wrong, the minister said.
“I do consider this issue (that) eminent personalities should be above all doubts,” he said.
Speaking about amendments in the Land Acquisition Bill, the minister indicated that the government could retain a clause of the Land Acquisition Act 2013 which stipulates that acquired land will be given back to farmers if it lay unused after 5 years with the amendment that this would not apply to long gestation projects like atomic plants.
Gowda said the land in the industrial corridors would be owned by investors and industrialists.
The minister said repeated claims by the BJP that the amendments are not designed to help industry were made to counter the propaganda that the amendments were anti-farmer.
The minister said: “If necessary, the government would be prepared to take the amendments to a joint sitting of parliament”, but he hoped it wouldn’t come to that.
Asked about repealing Article 370 of the constitution, the law minister said that it could only be abrogated after widespread consultation and consensus.
“It needs wider consultation... consensus has to be formed (before we really do away with it),” he said.
On Article 331 of the constitution which permits the government to nominate two Anglo-Indian MPs to the Lok Sabha, the minister said this had not happened during the first year because the BJP was preoccupied with its membership drive.
However, when asked how much more time is needed before nomination happens, the minister said it depended on Prime Minister Narendra Modi. “It depends on the prime minister,” he said.
Questioned about the All India Muslim Law Board’s stand that it was unconstitutional to make yoga compulsory in schools and that Surya Namaskar, in particular, was offensive to Islam, Gowda said persuasion and consultation was necessary and yoga must not be introduced in government schools by coercion.
“Efforts must be made to persuade those Muslims who think Surya Namaskar is against their religion. This is a sensitive issue and needed to be handled delicately,” he said.
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Law Minister Sadanand Gowda is repeating here what AG Mukul Rohatgi has earlier stated in Court.
Once again, this argument is badly worded, counter-productive, even legally untenable and the wrong way of framing this issue.
The criteria and mechanism for judicial appointments do form a part of the larger set of norms that promote and maintain judicial independence. So this argument as framed is wrong.
But judicial independence does not translate into a norm whereby judges appoint judges.
Rather the Govt should be arguing that the NJAC is an attempt to introduce integrity, transparency, accountability, participation, and substantive normative criteria etc into the process for judicial appointments, which values were not finding expression in the way the collegium process functioned.
The Govt should be arguing that the collegium method had become a serious threat to judicial independence and to the integrity of our courts, because of the way the system was being manipulated and corrupted.
The Govt should be arguing that judicial accountability is part of the norm of judicial independence.
The Govt should have placed on affidavit before the Court the material which led the Government to conclude that the Collegium system was dysfunctional and was resulting in improper appointments leading to the depletion of both judicial independence and judicial accountability. This material should also have been placed before Parliament. Next the Govt should have placed on affidavit the material to support its claim that the NJAC solution was devised after proper study and reflection and was found to be the best mechanism and containing the reasons why this was the best mechanism. None of this has been done.
Instead the AG and the Judges have been exchanging barbs and innuendos while still skirting around the real issues.
Note that the list of bad appointments was not placed on the court record, it was handed over to the Bench in a sealed cover, which looked at it for a few minutes, returned it to the AG and then dismissed it as containing nothing concrete even though this Bench has no authority to judge or comment on that list.
How was that list prepared and by whom?
The Govt must also honestly tell the court that the executive also played a role in the manipulation and corruption of the collegium system and that the NJAC solution was intended to curb arbitrariness and improper exercise of power in the judicial appointment process not just by the members of the collegium but also by the executive.
During the NJAC hearing today, AG Rohatgi used the term "consumers of justice" and was curtly told by the Bench that he should rephrase it as "seekers of justice".
I find this reflects an autocratic, non-democratic attitude of our judges in India who start to see themselves as above everyone else and above all institutions.
A google search of the term "consumers of justice" throws up book and article titles with this phrase and several books and scholarly articles which use this term. Why then did our Supreme Court judges find this term inappropriate.
Judges are not godlike and citizens are not "seekers" but are consumers of justice with a right to the delivery of high quality, efficient and fair justice delivery systems.
Our judges need to step down from their high perches and learn to be humble. A judge is after all a public servant providing a public service.
This remark by the Bench today shows up how some judges of the higher judiciary in India has acquired a larger than required sense of self-importance, power, arrogance and invincibility.
Read this HT report to get a sense of the lame objections being raised by this Bench to the NJAC.
ht.ly/2ZORzX
I reproduce two extracts:
"The Supreme Court said on Thursday the rejection of an aspirant for appointment as a judge on the grounds of doubtful credentials could be disastrous with the NJAC coming in the ambit of the defamation law.
The court expressed its misgiving saying that it would be difficult to give an "honest opinion" as NJAC, being a public body and covered under the Right to Information law, its proceedings would go public.
"If somebody is of doubtful credentials he can apply (for appointment as a judge) but you can't write it. Otherwise you will be hauled up," said the constitution bench of Justices Jagdish Singh Khehar, justice J Chelameswar, Justice Madan B Lokur, justice Kurian Joseph and justice Adarsh Kumar Goel."
And
"But the court remained unconvinced with the bench saying: "Eminent person will judge that he is a good lawyer but he will not make a good judge but another person, not so good a lawyer, would be an excellent judge."
These observations reflect upon the quality of the Judges on this Bench. Even a law student would know better than to make the first of these two arguments.
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