‘NJAC will have all the problems of the collegium system and more—the government will get additional role in appointments’

Activist-lawyer Prashant Bhushan discusses the problems with the proposed National Judicial Appointments Commission and how the Narendra Modi government is encouraging crony capitalism
Sadiq Naqvi Delhi 

What do you make of the government’s desire to constitute the National Judicial Appointments
Commission (NJAC)?

The NJAC has been talked about for quite some time now. It’s not the creation of this government. Even the previous government wanted something like this, and that’s why this Bill was passed unanimously. I think successive governments have been quite cut up by the fact that their role in judicial appointments had been reduced to a bare minimum. They wanted to get back into the action and have a share of that pie, and that is why they all came together to form the NJAC. 

What are the major issues?

In the NJAC, the law minister becomes an ex-officio member and the secretariat too will be with the law ministry. That means, of the two eminent persons to be appointed, one is a nominee of the government and the second is a nominee of the Leader of the Opposition. This will ensure that the political class, and the government in particular, will get a substantial say in judicial appointments. 

So why do you think they are pushing it?

After all the scams exploded and after the Supreme Court monitored the 2G and the Coalgate cases—in which a lot of big and powerful politicians and corporates were implicated-there has been a very strong and concerted attempt by the government to somehow derail and defang the institutions of accountability, which include the CBI, the Central Vigilance Commission, the Comptroller and Auditor-General, the CIC and the National Human Rights Commission and so on. This is also part of that attempt. 

How has it played out so far?

We have seen that whenever the government or the government along with the Leader of the Opposition plays a significant role or a dominant role in the appointment of people in such institutions, either these posts are kept vacant, as the present government is doing, or very weak and pliable people are appointed. The government has a conflict of interest in such matters because one of the important roles of the judiciary is to prevent the government from committing excesses, from human rights violations, from making unconstitutional law, from making unconstitutional orders, etc. Therefore, a government should not have a significant role in judicial appointments. 

How big an obstacle to judicial independence is the Act?

Two people in the Judicial Appointments Commission can block any appointment, so the law minister along with one eminent person can block anyone they are uncomfortable with. 

Can you point out some weak and pliable people appointed?

Yes, the present NHRC chief, Justice KG Balakrishnan, and the present CBI chief, AK Sinha, are known to be weak and pliable. 

You have filed a PIL challenging the NJAC…

We have challenged the Judicial Appointments Commission proposal but in our petition we have also asked that they should not revert to the ‘collegium system’ which also has its own problems. We should have a permanent, full-time, independent Judicial Appointments Commission in which the government doesn’t play any role and in which the sitting judiciary also does not play any role. See, apart from this question of independence of the judiciary, there is also this challenge of maintaining the integrity of the judiciary—that is, ensuring that the judges who get appointed are competent, honest and committed to the basic foundational principles of the Constitution. 

What is required to ensure that?

If this has to be done properly it requires a full-time body which has the time to devote to this issue and which functions in a transparent manner. Transparency requires at least three things. First, the posts of judges should get advertised so that people can apply or people can nominate others for that post. Second, the criteria for the appointment must be advertised and made public. Third, the names of the shortlisted candidates or the reselected candidates must be made public so that members of the public can send relevant information about them. 

How does that compare with the current situation?

None of this is happening in the collegium system and is not likely to happen with the NJAC either. The collegium system is bad because of lack of transparency. Sitting judges are very busy and they don’t have time to devote to it. That is why nepotism flourishes and that is why arbitrary selections are made. But the NJAC will have all the problems associated with the collegium system plus an additional problem—the government will get a substantial role in the appointment. 

Finance Minister Arun Jaitley said recently that anyone filing a PIL needs to declare the source of funds for the case. Why did you oppose this idea?

Because the petitioner who files a PIL is only moving a petition before the court, and if the court thinks it is motivated the court can always dismiss it with exemplary costs. This is just a way of trying to hamper and discourage PILs, just as they are trying to hamper NGOs like Greenpeace, Teesta Setalvad’s organisation and so on. 

This government claims to be the cleanest government ever. They say that their records are absolutely clean and they have never been engaged in any kind of corruption…

Every day we are seeing reports about Nitin Gadkari—the CAG reports and various other reports. It’s true that no major scam has come out so far. But, you see, even in the Mines and Mineral Development and Regulation (MMDR) Ordinance which they have brought in, there may not be any retail corruption in it but it’s a wholesale giveaway to the mining companies. It is a huge gift of several lakh crores of rupees which has been made to mining companies by providing that their leases are extended till 2030, by providing that those who have got prospective leases will be given leases without any auction. And there are some important things that were needed to be done to curb the role of illicit money, etc. Some of the clear scams involving Ambani and Adani have not been addressed. Modi himself ensured for Adani that Rs 6,000 crore loan from the SBI which at least six Australian banks had refused on due diligence. So crony capitalism is very much there in this government. Clearly, this government is essentially being run for the corporates.