Amended NJAC Act May Be Re-Introduced To Overhaul Judicial Appointments Process

The Modi government may reintroduce the National Judicial Appointments Commission Act (NJAC) in Parliament to ostensibly safeguard the interests of the people, as judges cannot be trusted to appoint themselves in secrecy.

Judges of the constitutional courts have silenced iconoclasts among themselves, such as the former Madras high court judge, C.S. Karnan, whose intemperate utterances earned him the dubious distinction of being the first high court judge to serve six months in jail for criminal contempt.

The crusader-activist-lawyer Prashant Bhushan was forced to pay a token sum of one rupee after being sentenced for contempt of court by the former Supreme Court judge, Arun Mishra, who was himself accused of giving pro-government verdicts. Prashant Bhushan’s late father, Shanti Bhushan, who died in 2023, created a sensation when he dared the apex court to send him to jail for alleging eight out of 10 CJIs were “definitely corrupt”.

To return to the present, coming close on the heels of the Rs 15 crore in burnt cash found in the outhouse of Justice Yashwant Varma’s official residence at New Delhi on March 14, a special court on March 29 acquitted Justice Nirmal Yadav, who was charge-sheeted when Rs 15 lakh in cash was delivered to the official residence of another judge from the Punjab and Haryana (P&H) high court, Justice Nirmaljit Kaur. She summoned the police, who found the late additional advocate general Sanjeev Bansal had allegedly sent the cash. Bansal has expired.

Seventeen years after ‘scam rocked the judiciary, a special CBI court in Chandigarh acquitted the former judge, Nirmal Yadav, now retired, and four others while alleging the CBI had fabricated evidence against the judge. A gleeful and smiling Justice Nirmal Yadav told a news channel she was innocent and she had full faith in the judiciary, which saved her from ignominy.

Courts acquit alleged criminals because the prosecution is unable to “prove beyond reasonable doubt”. The former CJI Tirath Singh Thakur was the chief justice of the P&H High Court when the unsavoury incident took place. He will never talk. Judges who stay silent because they want the people to repose faith in the judiciary deny the people their right to information.

The latest scandal to erupt is the lawyers' associations at Kolkata, who have voiced outrage at the transfer of Justice Dinesh Kumar Sharma from the Delhi high court to the Calcutta high court. They abstained from his swearing-in ceremony and might avoid appearing in his court, urging the Chief Justice not to assign him judicial work. The exact details of why the Supreme Court collegium has transferred this controversial judge from the Delhi high court to the Calcutta high court were not available except that the judge was transferred for the “better administration of justice.”

In November 2011, Justice Nishita Mhatre was transferred from the Bombay high court to the Calcutta high court in “public interest” along with another Bombay high court judge, who rose to become the chief justice of the Madhya Pradesh high court. There were allegations about this judge, which was why she was transferred to the Calcutta high court.

A crusader against alleged nepotism within the judiciary, advocate Mathews Nedumpara, who has founded the National Lawyers’ Campaign for Judicial Transparency and Accountability, told FPJ that Justice Sanjeev Sachdeva was transferred from the Delhi high court to the Madhya Pradesh high court on unverified allegations that his judgements benefitted a prominent tycoon alleged to be close to the government. Sachdeva won the second prize in the tough AOR examination held every year by the Supreme Court. He is the senior-most judge in the Madhya Pradesh high court who will select judges for that high court.

Advocate Nedumpara alleged that the high courts were not dumping grounds for tainted judges. “The Calcutta high court is the oldest high court in India and should not be made a dumping ground for judges who are allegedly corrupt. Why not ensure they are not given judicial work, as in the case of Justice Yashwant Varma,” he asked.

We must admit that the people are torn between two alternatives: either allowing judges to appoint themselves or allowing the government to have a say in who will become a judge. This has been well articulated by a senior advocate in the Supreme Court, Mehmood Pracha, who told journalist Neelu Vyas that “it can lead to a situation where Vice President Jagdeep Dhankar is taking very active interest in the (alleged) cajoling of Shri Jairam Ramesh, who is a known RSS-BJP person planted on the Congress who does not want to improve the collegium system but bring it within the domain of the executive.”

Pracha pointed out Vice President Dhankar, who is a senior advocate of the Supreme Court, has lauded the transparency of our present CJI, Sanjeev Khanna, who uploaded the videos of burnt wads of Rs 500 notes on the official website of the Supreme Court… I am not a big fan of the 50th CJI, D.Y. Chandrachud, but he started the live streaming of hearings in the Supreme Court. No details of the PM Care Fund (such as its beneficiaries) will be divulged to anyone,” he said.

Pracha pointed out that the heads of the Enforcement Directorate and the CBI were appointed by the government. “Just capture and demolish the independence of the collegium system and capture and kill the independence of the judiciary. First, capture the independence of the superior judiciary and later the independence of the subordinate judiciary,” Pracha has alleged. He has not minced words and probably is sure about what he is saying.

Pracha has articulated what the people of India dare not say. Neither the executive, which means the government of the day, nor the collegium system devised by the judiciary can be trusted to appoint judges. Each organ of the state is manned by those infused with an ideology that may not be in the best interest of the people of India, for independence means non-accountability to the people of India.

Ultimately, the citizens of India (or Bharat as the President prefers to call this nation) are sovereign. They delegate their sovereignty to the executive and the legislature for five years, but the judiciary is neither accountable to the people of India nor to the legislature.

Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court.