Published On : Wed, May 13th, 2015

Judiciary vs. Modi Government – why we should all be concerned?

This is one very significant event unfolding right before our eyes in the present moment, but strangely there are no debates and discussions happening on TV channels about it, so very little awareness among us, common citizens. But it should concern us all, because it has to do with a very important pillar of Democracy – our Judiciary.

Judges need to be ‘appointed’ frequently to various state High courts and also the Supreme court of India in Delhi. Though seniority comes into play – judges to High courts are selected from among the designated ‘Senior Advocates’ of any state – the other criterion for selection is not very transparent. The final call was taken by a group of judges themselves, called ‘the Collegium’. There has been a little unease about it, with some detractors calling it ” the ultimate old boys’ club, where one gets selected on the basis of who you know; who your father was; your family lineage etc.” Leaders and politicians, on paper had no say, but in reality, this is not the case at all. The President ( on the PM’s advise) selects and appoints the CJI, so the Executive writ cannot be overlooked. And informal discussions on who to appoint definitely happened between judiciary and powerful politicians…like Sonia Gandhi of UPA.

The Modi government is very determined to do away with this collegium system and wants in its place a National Judicial Appointments Commission (NJAC) which the body of judges is yet to accept.


In fact, to be fair to Modi and his cabinet, politicians of all hues and leanings, tend to agree that the ‘Judiciary’ has been overstepping its role and ought to be put in place. When the proposal for setting up NJAC was brought in both houses, there was not much debate and discussion, forget heated arguments as we are seeing now for the New Land Acquisition bill, but it was passed forthwith.


The main highlights of the bill are:


  • The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad.
  • The Bill has been introduced in conjunction with the Constitutional (121st Amendment) Bill, 2014, which establishes the National Judicial Appointments Commission (NJAC).
  • The Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).
  • Some of the procedures that will be set in place for appointment of SC judges and CJI are :
  • Chief Justice of India: The NJAC shall recommend the senior most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he is considered fit to hold the office.
  • SC judges: The NJAC shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.
  • Veto power of members: The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.
  • Some procedures for appointment for High Court Judges and CJ of any state are:
  • Nominations: Nominations shall be sought from Chief Justice of the concerned High Court for appointments of HC judges.
  • Eliciting views: The Commission shall nominate names for appointment of HC judges and forward such names to the Chief Justice of the concerned HCs for his views.
  • In both cases, the Chief Justice of the HC shall consult two senior most judges of that HC and any other judges and advocates as specified in the regulations.
  • Views of the Governor and CM: The NJAC shall elicit the views of the Governor and Chief Minister of the state before making recommendations.
  • Veto power of members: The NJAC shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

You have to really read between the lines to see, what is at play here. The Governor and the Chief Ministers of the state will have a say in who is to be appointed – thus bringing politics into the decision making. The speed with which Governors across the country were replaced, and old ones discarded unceremoniously shows the scant respect this position enjoys now. There is hardly a Governor anywhere who will dare disagree with the CM on his proposal.

Things as they stand now, after the passage of the bill are chaotic. The matter is in the Supreme court where a 5 member bench is hearing the ‘validity’ of this bill before it can be made a law. This process too is being debated and contested between the CJI and the Government. Since it is all sub judice at the highest level, we will not discuss the merits of it and who is saying what. Suffice to say that while the government is quick to point out that ” the Collegium system is dead and buried forever” while the Supreme court bench is saying ” it was very much concerned about the vacuum created”.

What we are worried about is why the change in the old system? What is the aim of the Govt?

As many observers must have noted, since he was voted into power with a huge landslide victory, Prime Minister Modi is like a man driven. No one doubts his intentions : he wants to take the nation forward; abolish poverty; build homes for everyone and criss cross the nation with industrial corridors which will be buzzing with employment opportunities, producing goods and making us all prosperous in the process. He has a blue print in mind and targets for achieving various deadlines. Call it an extrapolation of the Gujarat model on the rest of the nation – he is determined to do it.

What we have to be concerned about is, the method of implementation. Is all opposition to any plan be brushed away as inconsequential disturbance? Look the PM’s utterances in foreign countries like France and Canada.

“We are clearing garbage accumulated for over 50 years! We shall make everything alright now”.

Shows that this person has little or no respect for those who have walked the path before him – whether it was Pandit Jawaharlal Nehru, Indira Gandhi or Rajeev Gandhi. ( In fact from the present disposition, the Nehru – Gandhi family deserves nothing but scorn and derision. Just note the flippant tones with which they dispose off Rahul Gandhi , the scion of this family and son of Sonia Gandhi, the ‘pardesi’ bahu).

So apart from the Congress party led by this mother-son duo, who are perceived as the greatest up setters of the Grand Plan set in motion by the trio of Modi -Shah and Jaitley? Not to forget busy Gadkari too of course, whose visions for India are so fantastic that they evoke more wonder than the windmills of Pinocchio! Modi is welcome to take private personal planes, Gadkari dreams of ‘sailing’ across the nation in hovercrafts and catamarans through Godovari – Narmada – Ganga- Jamuna and Krishna, which will all be interconnected… even our Nag Nallah, sorry Nadi will be a tributary of this grand water body…

Well, we are digressing ( Gadkari seems to have that effect). The main opposition to the grand plan is of course the phalanx of various NGOs representing environmental concerns and bodies fighting for rights of marginalized people like tribals and poor farmers. Modi’s vitriolic against NGOs is well documented.

And somehow, ‘judges living in their ivory towers’ are supposedly indulgent of these very NGOs and others… Horror of horrors, some of them could be closet Socialists and left leaning gentlemen too! How are they to be controlled? Get a judiciary pliant to your views!

As Justice Vikramajit Sen, a judge of the Supreme Court said on Tuesday ” it was actually the government that was failing in its duties.” He made the remarks specifically in the context of protecting the environment,

“Are we supposed to look the other way when we see environmental degradation on such a large scale or is it our duty to to act as members of the higher judiciary?” He asked while speaking at a function organized by the Jindal Global Law School. Justice Swatantra Kumar, Chairperson of the Green Tribunal agreed. Kumar said the the Supreme Court and the High courts faced the extreme pressures of work, yet they find time to give priority to environment, to human needs, to fundamental rights. And they give extraordinary relief and still receive criticism”.

The Judges are in a huddle and definitely upset.

A way out will have to be found and definitely will be found, but we the people of India also have to delve on the question that can One Person be given so much power that he can unilaterally decide on the destiny of the nation? In a parliamentary Democracy and the vibrant but multi faceted Society we live in can unipolar views be allowed? Can they be allowed to dictate totally?

Sunita Mudliyar