NJAC verdict to be Questioned.. Wish there is a National Referendum

The scrapping of NJAC Bill by Supreme Court and upholding the system of the Collegium has been debated with muted voice for the last few days in the legal circles.

After Congress announced its politically expedient decision not to back a new version of the Bill, the Government has no option but to stay silent on the issue.

However, no such compulsion is there on citizens of India and one such individual who is aggrieved by the decision on the NJAC Bill has filed a review petition as reported by TOI today. 

( A Copy of the petition is available here)

Naavi.org welcomes this decision for a review since the decision of the bench in NJAC issue is not without its own risk of Judicial over reach.

The tendency seen in the decision to read meanings into common English words which suit the occassion is a dangerous tendency since this creates a precedence that any word in law can be interpreted in any arbitrary manner. Common man will therefore never be able to understand the law as it is intended and will for ever be at the mercy of the Supreme Court to interpret in any manner it likes.

The abuse of this power is no where more evident than in the case of the interpretations on the Constitution which has been amended so many times including the basic structure involving “Equality Before Law”, that the frequently uttered words such as “Constitution is Supreme” sounds hollow.

If the Supreme Court was so concerned about the basic structure of the Constitution, it would not have allowed earlier amendments including discrimination of people on the basis of caste, religion and gender. Today, a ” a  so called Forward Caste Hindu Male in India” is a third class citizen in law and both the vote bank politicians and the accommodating Judiciary are responsible for the status.  No body including the media which boasts itself of being the protector of public conscience seems to be interested in protecting the rights of such Citizens. But when it comes to protecting the appointment of fellow judges, it is strange that the “Basic Structure” of the Constitution is remembered by all.

Naavi.org brought out the aspect of improper interpretation during the Shreya Singhal judgement in scrapping of Section 66A of ITA 2008 and argued that the judgement was incorrect, illogical and involved arbitrary interpretations not consistent with the language used in the law or in a dictionary. This is seen in greater measure during the striking down of the NJAC Bill where the words “In consultation with” is interpreted as if it means “Under directions of”.

As in the case of Shreya Singhal case, there was every opportunity for the Judiciary to read down meanings without being excessively harsh on the legislature and striking down the proposed Act. The Court appeared to show case its power and cause a “Chilling Effect” on the legislature to prove a point that Judiciary is supreme. In the Section 66A case, there was no conflict of interest for the judges and it was only a discussion of whether the Judges understood the technology law as intended or not. But in the current case, there was a clear case of conflict since the Judges were taking a decision that affected their own position as judges.

This was a fit case for a national referendum which the Court could have ordered. Alternatively, Court could have taken a middle path of agreeing for the NJAC with a greater weightage for the judicial persons in the decision making process and a commitment of transparency and avoidance of corruption (financial or otherwise) in the appointment.

Instead, the Court took the decision to strike down a constitutional amendment bill knowing fully well that it would embarrass the current Government more than any body else. In fact the decision has hurt the public confidence on the Judiciary more than upholding it.

We cannot ignore the fact that Supreme Court has faulted during and after “Emergency”, the cause of which was a different set of politicians who ironically are now again benefited politically by the current decision. It is as if Congress is having  its cake and eating it too, thanks to the Judiciary.

When we strongly advocated a review of the Shreya Singhal Judgement, unfortunately there was no support from the legal community since they were perhaps not clear of the law themselves and wanted to avoid confrontation with the Judiciary. However, I am happy to note that int he NJAC case some body has the courage to file a review petition.

I hope this leads to an improvement of the decision and proves one point that even a final judgement from the Supreme Court need not necessarily be correct. This will be a precedent that Supreme Court judgement also can be subjected to a review and roll back.

I wish the petitioners also request the Court to consider ordering a National Referendum on the issue before a final decision is taken and respect the will of the people. This will be a precedence of its own and NextGenIndia  will benefit.

Naavi

Related Articles:

Review plea filed in SC on NJAC verdict

NJAC: The bad bill The poor pill

What did Justice RM Lodha did to clear CIC-verdict on judges’ appointment

Various articles

Petition copy

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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