NJAC Necessary For Judicial Transparency in India

Yet another argument for celebrating the end of the collegium system of judicial appointments.

On the 21^st of September 2015, a Division Bench of the Bombay High Court comprising of Justices A.S. Oka and V.L. Achliya declined to grant any preliminary interim relief after hearing initial arguments in a batch of Writ Petitions that sought to challenge the constitutional validity of the Maharashtra Animal Preservation (Amendment) Act, 1995, brought into force a few months ago by the Maharashtra State Legislative Assembly. Readers may be aware that it was the recent implementation of this very amending legislation in Maharashtra that had brought about a complete ban on the slaughter of bulls and bullocks adding to the already existing ban on cow slaughter and further also making illegal, the sale, possession and consumption of the flesh of these animals within the State of Maharashtra.

Interestingly the preliminary interim relief sought by the Petitioners in this batch of Writ Petitions was in the nature of a ‘temporary stay’ on the complete ban on slaughter of bulls and bullocks in Maharashtra for a span of three days only; specifically from September 25^th 2015 to September 27^th 2015, which period coincided with the Islamic festival of ‘Eid-Al-Adha’ to be celebrated by Muslims across the globe including in the State of Maharashtra on the 25^th of September 2015.

The argument advanced by some of these Petitioners (All of whom claimed to represent the interests of the Muslim community in Maharashtra) in favour of the aforementioned preliminary interim relief sought, was that the sacrifice of bulls and bullocks on ‘Eid-Al-Adha’ was an essential part of their religion and that the existing ban in Maharashtra amounted to a violation of their Fundamental right (freedom of conscience and free profession, practice and propagation of religion), available to all citizens of India as per Article 25 of the Constitution of India.

The State of Maharashtra, represented by the Advocate General of Maharashtra, Shri Anil Singh responded by stating that there were other animals available in the State that could be legally slaughtered and that the sacrifice of a bull or bullock in particular was not an essential requirement.

The Division Bench however declined the interim prayer of the Petitioners on the ground that it was not possible for them to grant any such ‘drastic relief’ of an interim nature as the same would amount to a stay on a Statutory Provision in a legislation introduced by the State Government. But the Division Bench while dismissing the said interim plea on this ground made no observations whatsoever with regard to the merit of either of the arguments advanced on both sides.

An interesting thought occurred to me when I learnt of this bit of preliminary adjudication by the Division Bench of the Bombay High Court. I thought about how there may have been a possibly different outcome had these Writ petitions come up before another bench of judges; a bench that would have comprised for example, the Hon’ble Justice Mr. Gautam Patel, a presently serving Additional judge of the Bombay High Court.

Now normally I would have been reluctant to name a judge in this context. But the views expressed by Justice Gautam Patel when he was a private citizen, on the communally sensitive issue of beef consumption and bovine slaughter in his article dated 17^th March 2012 bearing the title ‘The Good, the Bad and the Bovine’ published in what was his once weekly news column that he used to write for a local Mumbai Daily, prior to being appointed a Judge of the Bombay High Court.

Following are some excerpts from the above linked article containing views that were expressed by Justice Patel as a private citizen before assuming the Office of a Judge of the Bombay High Court:

“It would be comic if it wasn’t so insidious. Karnataka proposes to pass into law the Karnataka Prevention of Slaughter and Preservation of Cattle Bill. This isn’t just to ensure the health of livestock (it does exactly the reverse) or control slaughter-houses.”

“It targets specific communities and groups, particularly the poor, Dalits and Muslims.”

“Worse yet: the 2010 act puts beef on par with crystal meth and cocaine – the mere possession of it is to be a criminal offence. Transporting cattle for slaughter is also a crime and if you’re heading in the direction of a slaughter house – which is pretty much in any direction – your vehicle can be confiscated.”

“The now-beleaguered Yedurappa offered a bedazzling explanation. “Cow slaughter ban is in force in Cuba and Iran,” he said in 2010, and went on, with all the emphasis at his considerable command, to outline the therapeutic advantages of a daily quaff of a holy cow’s micturition; divine bovine urine.”

“there is no similar act about sheep, goats, fish or fowl – is less about animal rights than right-wingery and reactionary politics. It is a surreptitious destruction of entire communities by undermining their lives.”

“Beef is food to many; not coincidentally, Dalits and Muslim.”

“In fact, it’s the leather industry, with exports estimated well to the north of Rs 8000 crores annually, that most extensively depends on cattle produce.”

“That the Karnataka bill was always aimed at non-Hindus became clear when the Home Minister proclaimed that the bill was “in tune with the sentiments of the majority community”, and followed the BJP’s election manifesto.”

“Yet we do not see these right-wing demagogues roaming around unshod, unbelted or unbuttoned (though far too many are unvarnished).”

The above views expressed by Justice Patel before he was appointed as a Judge of the Bombay High Court were expressed in the context of the then Karnataka Government’s decision in 2012 to implement the Karnataka Prevention of Slaughter and Preservation of Cattle Bill 2010; a legislation that is not entirely dissimilar in its content and objects to the Maharashtra Animal Preservation (Amendment) Act, 1995; the constitutional validity of which is sought to be challenged in the Writ Petitions filed before the Hon’ble Bombay High Court.

Justice Patel is entitled to his views of course. And perhaps they wouldn’t have amounted to much, had he remained a private citizen. But he is no longer just a private citizen. Which would mean that the views expressed in this article may have assumed considerable importance, had these Writ Petitions come up before him to adjudicate.

Now I wish to emphasise of course, that I have no reason whatsoever to call into question the ability of the Ld. Justice Mr. Gautam Patel, to dispense justice in an unbiased and dispassionate manner. I’m sure he is capable of upholding the letter of the law free of all fear or favour towards anyone. I am not speculating about his integrity at all. In fact the issue isn’t really about any particular Judge.

There is a larger issue at stake here; an issue that concerns the entire system of judicial appointments in India, especially in the wake of the recent debate on the National Judicial Appointments Commission Bill 2014(“NJAC”).  For a better understanding of the NJAC you may read this concise article in Swarajya

The future of the NJAC Bill 2014 is uncertain. The Supreme Court has reserved its verdict after hearing arguments on a bunch of Writ Petitions that have challenged the NJAC Bill’s constitutionality; the role of the Executive in judicial appointments in the NJAC Bill 2014 being the major bone of contention in the arguments advanced. But regardless of whether or not the NJAC Bill is implemented, I do firmly believe that litigation legal professionals across India, especially the ones who hail from non-legal family backgrounds will be delighted at the one certainty that exists in all this; The certainty that the collegium system of judicial appointments by the Judges themselves has now been done away with, for good. This has even been communicated by India’s Attorney General, Mr. Mukul Rohatgi to the Supreme Court on behalf of the present NDA Government.

The Collegium system of judicial appointments has been a source of much criticism over the years. In fact the 230^th Indian Law Commission Report on judicial reforms in India even went as far as to criticise what they referred to as the appointment of “Uncle Judges” in various State High Courts which hinted at the appointment of a judges to the same court in which the appointed Judge’s kith and kin were also practicing in; a worrying trend for obvious reasons.

But this was not all that was perceived as wrong about the collegium system of appointments. The system also did not enable the litigating public of India to know if the people adjudicating their cases were free of all political or ideological biases.

Now I’m certainly not suggesting that every litigant ought to have the luxury to pick and choose which Judge should adjudicate his/her case depending on the ideologies of a particular Judge. This would not be possible to implement in our country. But is there in existence a valid argument in favour of letting a particular Judge’s ideological leanings remain private?

For example, would an Industrial Organisation involved as a litigant in a Labour Court or a Company Court proceeding, deserve to know if the man or woman adjudicating their case is a card carrying Communist? Not that I’m suggesting that a card carrying Communist is not capable of being legally or judicially sound; in fact there is no doubt that a comparable bias or prejudice may also be present in the mind of a Judge with Right wing Hindu leanings, who has been assigned the task of adjudicating the criminal prosecution of an accused Muslim terrorist, for example. In such a case would it be fair for the ideologically right leaning Judge to continue to adjudicate the case of the accused Muslim terrorist? I for one would be open to the idea of trusting the Judge’s ability. But perhaps my secular minded left leaning friends may not.

And this is really the essence of what I’m trying to communicate; that even if there is a slight likelihood that a Judge’s strong ideological leanings may affect his/her better judgement; in such a situation, does a litigant deserve to know about the judge’s ideological leanings or not?  I would argue that the litigant does deserve to have the right to this information. And the end of the collegium system of judicial appointments in India must be celebrated for this very reason. The opaqueness and lack of transparency that characterised the collegium system of judicial appointments in India, no longer exists; despite the fact that the NJAC Bill (pending the Supreme Court’s verdict) is not necessarily viewed as a perfect replacement; primarily because the Executive’s role in judicial appointments is an idea many are uncomfortable with.

But what people should know is that the process of judicial appointments in India will no longer be shrouded in mystery and suspicion if the NJAC Bill is implemented. Appointments are bound to be a lot more transparent and open to scrutiny; and it will be the very involvement of the Executive in judicial appointments that will also bring about perhaps, a closer public and media scrutiny on the candidates being considered for judicial appointments; something that was lacking for far too long now in our country; and one can only hope then, that it will be this very transparent and open scrutiny that will bring about true judicial transparency and accountability in India.