THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014
A constitution bench of Supreme Court of India is hearing the challenge to the validity of NJAC Act, 2014. In doing so they were not discreet about the fact that judges are the interested parties. The arguments far from being adversarial have been turned into inquisitive enquiry as is apparent by the line of questioning by the judges. It appears that judges are evaluating as to which system is best. The earlier system where executive appointed the judges and grossly abused the position or the present system of in which judges themselves appoint the judges and which is apparently full of nepotism as nearly a 1/5th of all the judges appointed in high courts and supreme court is related to a previous judge. Living or dead. Unfortunately the question of nepotism was not raised by Attorney General with empirical data. At least news papers did not report it. The present system has come under flak from retired judges themselves. One such criticism of judges appointing judges is here. Regarding the corruption by the relatives of judges and inaction by appointing judges read here. Another similar story about corruption is here. Another report about rich relatives of former Chief Justice of India is here. How retired judges are using prefix ‘Justice’ forever i.e. even after demitting the office is another mystery in the face of express prohibition in Constitution. But who can judge the judges?
Any how, the line of enquiry by court in NJAC case is similar to the substantive due process arguments in the USA and is very delicate. It would be wise to tread on this line carefully. In my view court can not lay down the policy of appointment or evaluate a better one. Rather has only to see if the one propounded before it does not deviate from overall scheme of Constitution and thus does not violate basic structure of constitution. Of course it can judicially review it on all other available grounds like arbitrariness etc.
What is similar between India, Pakistan and Mynamar?
It is unfortunate that system of appointment of judges by judges finds similarity with two quasi totalitarian or totalitarian countries where military appoints military and the Government has no say and people have no right to know anything about it.