Regret my decision in the NJAC case, Justice Kurian JosephMay 10 2019
Former judge of the Supreme Court Justice Kurian Joseph yesterday said that he was beginning to regret his decision in the National Judicial Appointments Commission (NJAC) case.
Through the decision, the Supreme Court had declared the 99th Constitutional Amendment, which sought to bring in the NJAC for judicial appointments, to be in violation of the Constitution.
Justice Kurian Joseph was speaking at the launch of the book titled 'Independence and Accountability of the Indian Higher Judiciary', held at the India International Centre, New Delhi on April 9. The book is authored by Vidhi Director Arghya Sengupta.
The other speakers at the event were Union Finance Minister Arun Jaitley and Assistant Professor at National Law University, Delhi, Dr. Aparna Chandra.
The event was attended by several lawyers, academicians and public personalities including Attorney General KK Venugopal and Senior Advocate Siddharth Luthra, among others.
While recollecting KK Venugopal’s argument before Court that the NJAC Act must be read down in order to be saved, the former judge said,
“Independence is absolutely required. Question is whether it should be absolute independence.”
Speaking on issues of independence and accountability in the context of the appointment of judges to the Supreme Court, Justice Joseph said,
“... the appointment of judges has a process. For Appointment of the Chief Justice of India, the process is clear, it is seniority.. But for other judges..(considerations like) he will be CJI, he will be part of the Collegium...that is possible..”
Further stating that the present system of appointments made by the Collegium was “100% defective”, he remarked that nothing has been done to improve it.
“How to improve the Collegium system...nothing has been done. The only improvement is that resolutions are uploaded...That is why I regret my NJAC judgment. None of the suggestions for the improvement of the Collegium was implemented…I even wrote a letter (in this regard).”
Justice Joseph thus advocated for the establishment of a “fool-proof system like a secretariat” for carrying out judicial appointments.
He, however, disagreed with Jaitley’s emphasis on a relatively greater role of the Executive/elected government in the appointment of judges. The job of defining and interpreting laws and the Constitution of India has to be undertaken not 'by the people' but by the judiciary, he remarked.
Further speaking on the declining faith of people in the judiciary, Justice Joseph said that it was a “very painful concern”. He then called upon everyone to “introspect” on this issue.
Justice Kurian also iterated that the judiciary must be insulated from all external pressures and that the Constitution should be upheld by judges without fear.
“Honour of the institution is to be preserved…In sensitive issues, the quorum must reflect the diversity of the country. Independence is part of the Rule of Law.”
On being asked about his views on the growing practice of ‘sealed covers’ in the judiciary, Justice Joseph refused to comment. He nonetheless exclaimed,
“Sealed cover jurisprudence I cannot comment on. The lady of justice is blind, but the justice delivery system is not.”
Making his views on the issues of post-retirement jobs for judges public, the former judge said,
“...there are two types of judges - one is forward-looking, other is looking forward. My personal conviction is the former.”
He then went on to suggest establishing an “appointment commission” for filling up vacancies in the Tribunals.
“...you have to find somebody (to head the Tribunals)...Why don't you start with an appointment commission and have an open mechanism?”
Justice Joseph also expressed his reservations with respect to the Supreme Court acting as the Court of first instance in various cases.
Assistant Professor Dr. Aparna Chandra also spoke on a variety of contemporary issues.
"It is imperative for us to discuss these issues (of independence and accountability) in light of the sexual harassment allegations against the CJI", she said.
"There is a problematic judicial discourse of viewing independence and accountability as antithetical. Judges are exercising so much power that questions of accountability should not be limited to impartiality. The accountability mechanism should not be limited to executive interference."
Unreasoned orders, affidavit culture, and sealed covers strike at judicial accountability, she added.
Prof Chandra also acknowledged that while the reasoning of NJAC judgment was problematic, the nature of inputs that the Executive provides to stall appointments of judges was also a question.
Referring to the sexual harassment allegations against the CJI, she remarked that the case definitely pertained to the independence of the judiciary.
"...(it would be seen) how they react when one of their own is held to account. Till now it appears opaque."
While speaking on accountability measures other than impeachment, Prof Chandra iterated that an In-house Committee mechanism was in place. She, however, listed several shortcomings of the mechanism.
"Can we shield the judiciary in the name of tradition and independence?", she asked.
When there is a threat to independence, there should be self-regulation, she argued.
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