Supreme Court scuttles Modi's judicial reform move

[CG]

The Supreme Court on Friday struck down a law giving Prime Minister Narendra Modi's government a bigger say in the appointment of top judges, calling the new system harmful to judicial independence in the world's largest democracy.

The top court has a history of judicial activism that can prove disconcerting for governments, who say courts often exceed their powers in announcing decisions.

The Supreme Court took the previous administration to task over issues such as corruption and human rights, for instance.

A new system introduced by Modi's government last year included the union law minister on a panel that appoints senior judges. The old system had vested those powers in a group of India's top judges.

"The court said it (the panel) will obstruct judicial independence that is the backbone of the constitution," said Prashant Bhushan, one of the lawyers who challenged the new law.

[ravi2003]

Which other major developing or developed countries have collegium system ?

[someone]

This case shouldn't be seen as just a Modi's judical reform. It's about about independence of judiciary and seems like the judges believe they have divine right to appoint themselves. That's not a true democracy.

[New guy]

Can someone ELI5 what this is about? the politicians claim the judiciary are acting against constitution. The SC claims politicians will have too much influence (one of the examples they used was this government will never allow a gay judge to be appointed). What is the actual reform about?

[someone]

The NJAC Judgement – An Alternative View  Arun Jaitley

The NJAC Judgement – An Alternative View

The key rationale behind the majority opinion appears to be that independence of judiciary is an essential ingredient of the basic structure of the Constitution. This is unquestionably a correct proposition. Having stated this, the majority transgresses into an erroneous logic. It argues that the presence of a Law Minister in the Commission and the appointment of two eminent persons in the Commission by a group, which will, besides Chief Justice of India, comprise of the Prime Minister and the Leader of the Opposition, will constitute political involvement in the judicial appointments. Judges appointed on this basis may feel gratified to the politicians. Political persons would be obviously guided by their political interest. The Judges warn of “adverse” consequences if politicians were a part of the appointment process. Hence protection of the judiciary from political persons was essential. This is key reason on which constitution amendment, unanimously passed by both the Houses of Parliament and the State Legislature, has been struck down.

Politician bashing is the key to the judgement. One learned judge argues that Shri L.K. Advani has opined that dangers of an Emergency like situation are still there. Civil society in India is not strong and, therefore, you need an independent judiciary. Another argues that it may be possible that the present Government does not favour appointment of persons with alternative sexuality as Judges of the High Court and the Supreme Court. Politician bashing is akin to the 9.00 PM television programmes.

The judgement ignores the larger constitutional structure of India. Unquestionably independence of the judiciary is a part of the basic structure of the Constitution. It needs to be preserved. But the judgement ignores the fact that there are several other features of the Constitution which comprise the basic structure. The most important basic structure of the Indian Constitution is Parliamentary democracy. The next important basic structure of the Indian Constitution is an elected Government which represents the will of the sovereign. The Prime Minister in Parliamentary democracy is the most important accountable institution. The Leader of the Opposition is an essential aspect of that basic structure representing the alternative voice in Parliament. The Law Minister represents a key basic structure of the Constitution; the Council of Ministers, which is accountable to Parliament. All these institutions, Parliamentary sovereignty, an elected Government, a Prime Minister, Leader of Opposition, Law Minister are a part of the Constitution’s basic structure. They represent the will of the people. The majority opinion was understandably concerned with one basic structure – independence of judiciary - but to rubbish all other basic structures by referring to them as “politicians” and passing the judgement on a rationale that India’s democracy has to be saved from its elected representatives. The judgement has upheld the primacy of one basic structure - independence of judiciary - but diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected Government, the Council of Ministers, an elected Prime Minister and the elected Leader of the Opposition. This is the fundamental error on which the majority has fallen. A constitutional court, while interpreting the Constitution, had to base the judgement on constitutional principles. There is no constitutional principle that democracy and its institutions has to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?

As someone who has spent more years in court than in Parliament, I feel constrained to speak out for Indian democracy. There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected.

The illustrations given had to be on a sounder footing. If one leader feels that there are dangers of emergency, there is no presumption that only the Supreme Court can save it. When in the mid-Seventies the Emergency was proclaimed, it was people like me – the politicians, who fought out and went to prison. It was Supreme Court that caved in and, therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history. As for the cause of those representing alternative sexuality, the Delhi High Court had decriminalized it. I am a part of the present Government, but I had publically supported opinion of the Delhi High Court. It was the Supreme Court which recriminalized alternative sexuality. The assumption that the cause of the practitioners of alternative sexuality to be appointed as judges, can only be protected by Supreme Court, is again belied by history. The Supreme Court opinion is final. It is not infallible.

 Good response from him. Quoted some parts of it.

Edited October 18, 2015 by someone