NJAC- and the Halo around it ,,,,,,,,,


I guess  , most of you had watched JOLLY , L.L.B movie , for those who haven’t let me explain the central theme . A law graduate fresh out of college struggles to climb up the ladder in a district high court . He aspires to make money and earn fame thus to impress his lady love . He shifts his base to India’s capital to broaden his sources of income . There he finds himself caught in between the tussle of his inner consciousness and the ruthless world of law and justice .

The entire movie revolves round a hit and run case . Poor homeless people crushed by spoiled brats of ultra rich . The BOLERO , an S.U.V transforms from a personal vehicle to a lorry of an unidentified owner to a bullock cart in the court room .

The blind-folded lady  standing in every court room probably has no chance either to laugh at the hypocrisy or to shed tears .

Un arguably , Dicey’s “Rule of Law  ” is observed in letter  but never in spirit.

As a nation which  practices separation of powers , judiciary as a separate organ was ought to be a breathing lung for the society  with a state . Of course the stateless societies also  had dispute redressal mechanism , but they were more informal . Conflicts were either resolved by the elders or wise or combination of them . As David Easton rightly calls them ” Stateless political systems ” .

Kautilya in Arthasashtra warns Chandragupta of several rules and principles to be strictly followed in the recruitment procedure . He goes on to say that recruiting an inefficient person or posting a highly skilled person under a less qualified or dumb leader is highly dangerous and can ruin the entire system .

It looks like as if the appointments and the recruitment procedure as a whole in the public services and the public sector have never adhered to this warning of Kautilya  .

Judiciary appointments is one such case . Judiciary in India has a paradoxical situation the appointments in higher courts at higher level and the apex court are highly publicised . Every minute detail is taken care of , in every respect . whereas the lower courts face severe crunch of manpower shortage . Bhanu Pratap Mehta in his book ” Public Institutions in INDIA ”  correctly points out that  : ” Judiciary in India is more concerned with formal powers than with effectiveness ” .

After giving due considerations and lot of debates in constitution assembly , Articles 124(2) and 217(1) were decided so as to make the appointments less cumbersome and more consensual . But history of independent India had something more to offer .  A smallest word ‘consult’ created typhoons , hailstorms and willy willies all through these years .

The first judges case said the chief justice has no veto power in such consultations , while the second and third judges case turned the tide in favor of the entire judiciary , citing the aberrations in appointments followed by the EMERGENCY period of 1970’s. Thus completely sealing the judicial appointments to public scrutiny .

The NJAC(National Judicial Appointments  Commission) Bill which seeks to open up the judicial appointments from the old collegium system to consensual , has also opened up the transfer can of worms.

Bhanu pratap has unearthed  the real reason of the controversy surrounding judicial appointments and that too why has it been persisting for decades . He says that there is no selected criteria to say what it counts to be a good judge .

The veto powers of this newly formed commission is also mired in delusion. The bill as it says ” The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation. ” . How to understand this veto power is a question in itself . As Mr.  Pravin Khanna says that it can neither be considered under the majority vote or absolute vote and I totally agree with him  .

Judiciary in every society  is a necessary evil , but is also a necessary organ without which the entire system can never function in a  systematic and orderly manner .

For all those mediocre’s like me who can’t understand and grasp  Rawl’s theory of distributive justice , Amartya sen’s idea of justice and Kautilya’s analysis  of dandaniti in RajDharma ,  I would like to say throw away all your doubts . The principles of justice in India are highly tweaked and never straight forward .

The NJAC  is simply like this  :

Earlier except Chief Justice of India ,let’s say  the family head ,   all were introverts 🙂   i.e  ” They used to appoint themselves  “. That is something like family members assigning duties to themselves  ,  who can do what , who can go to where etc . From now one illiterate and two famous persons or Persons in News(PIN) are also going to their house to appoint who can do what . It is something like a co-operative society member coming to your FLAT  and dictates the roles  and duties of work .

For a detailed analysis of the bill please visit

http://www.prsindia.org/billtrack/the-national-judicial-appointments-commission-bill-2014-3359/

 

I would also request my lawyer friends : Shekhar Bera ji and Ritu to provide more inputs and throw more light on this .  🙂

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