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Should Judges Really Have The Final Call On Who Gets Appointed To The Judiciary?

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By Sakshi Abrol:

Notwithstanding the swathe of arguments and rebuttals that ensued following the Supreme Court verdict abrogating the National Judicial Appointments Commission (NJAC) Act that had apparently seen a near-unanimous concurrence from the legislature, a rightful pillar of our democratic edifice; the proponents on either side of the spectrum would agree on at least two premises:

That the Collegium system of judicial appointments is riddled with a number of inefficiencies like non-transparency and nepotism rendering it an ugly gamble for position amongst the so-called exemplars of the justice, and that the closed door collegium system often neglected merit to give precedence to cherry-picking of personal favourites (which is not a hidden secret). It wouldn’t thus be technically contemptuous to draw an analogy between these self-appointing elite and pesky politicians who scrounge and squabble to get their pets a piece of the cake. That the collegium system is a monumental affront to the glory and impeccability of the guardian of our Constitution, is an established truth.

Image source: WordPress
Image source: WordPress

The very essence of our Constitution vests on a separation of power between various institutions and a coherent system of checks and balances, a quintessential element of which is the independence of our judiciary.

The common grounds however, end with that and what follows next is an entire discourse on the merits and de-merits of the judgement. Picking up from the plethora of articles written on the issue, simplistically put, there are two vantage points from where the debate can be analyzed; 1. As a part of a timeless tussle between the executive and the judiciary and 2. From the point of view of the denizens of ‘Argumentative India’.

The adherents of the first category see this as the turbulent history of the 70’s repeating itself where the ‘will of the people’ is touted against the upholding of our ‘Constitutional norms’. So, while Jaitley responded with the sobriquet, ‘tyranny of the unelected’, Justice Lokur while writing the judgement said, “It would run the danger of creating a tyrant in the President who would enjoy absolute powers to appoint judges to SC and HCs.” The manner in which the watershed judgement acknowledges the presence of a rather unanimous legislative backing to the NJAC has, for some, laid bare the live wires of confrontation between the protector of our laws and the representative of the will of the people.

However, this theory is opposed by others who have chosen to zero-in on a particular statement made by Justice Khehar, “At the present juncture it is difficult to repose faith and confidence in the civil society, to play any effective role in that direction. For the simple reason, that it is not sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent to the political executive establishment. It is therefore, the higher judiciary which is the saviour of the fundamental rights of the citizens of this country…” While the statement is in complete consonance with the constitutional task that has been assigned to the Judiciary in India which also makes it an indispensable democratic ingredient, the manner in which questions have been raised on the competence of our civil society has raised a number of frowning eyebrows. The judgement thus not only castigates the non-partisan decision-making ability of the political executive, but also rather vociferously exposes the chinks in the armour of the civil society as well and is being read as a self-indulgent, arrogant propaganda by the judges claiming to be infallible and invincible.

Though both the debates have the intrinsic capacity to open up the Pandora’s box making this discussion an even more intellectually riveting exercise, the problem lies in the obfuscation that necessarily accompany them, relegating the actual issue to the back burner. A post-mortem of the judgement would inevitably tread into the troubled waters of marking fiefdoms by the legislature and the judiciary but it does not end there. The brass tack of the judgement boils down to the ‘basic structure doctrine’ whose genesis can be traced to the Keshavananda Bharati case where the amending powers of the legislature vis-à-vis the Constitution was circumscribed in a rather open-ended manner by the judiciary. The basic structure of the Constitution includes our inexhaustible philosophical treasures of sovereignty, territorial integrity, judicial review, federal structure as well as the ‘essence’ of Fundamental rights without having the actual rights cocooned within the folds of this judicial innovation. If any constitutional amendment therefore seeks to tamper with the essential features of the Constitution, it is for the court to annul it on ground of ultra vires.

The independence of the judiciary invariably finds mention here and is therefore insulated from any executive or constituent interference. The autonomy of the judiciary is critical to the sustenance of our democratic ethos but what does this independence comprise of? Because, if judicial appointments de facto imply judicial independence, the SC judgement automatically passes the test of mindful public scrutiny. And if the nitty-gritty of judicial independence itself is shrouded in mystery, the judgment has already glided under the hammer. Factually, there are a number of safeguards in place to ensure the independence of the judiciary more convincingly in our country where the state is a major litigant in the court of law. The administrative expenses of the SC drawn from the Consolidated Fund of India, the arduous procedure for impeachment of a judge, and the prerequisite passage of a motion to discuss the conduct of a judge for his removal are some constitutional provisions that uphold the independence of the judiciary. The collegium system of judicial appointments despite its various shortcomings, keeps the executive at an arm’s distance from tinkering with the chimerical idea of a ‘committed judiciary’. Seen in this light, an independent mechanism to appointing judges profoundly contributes to the overall independence of the judiciary because even the slimmest entry point to the executive would cataclysmically wreaks havoc to this colossal apparatus of justice. This judgement is then nothing short of a re-iteration of the judicature’s commitment to the preservation of the ‘basic structure’ of our constitution and hence cannot be dismissed as a case of judicial overreach or judicial tyranny. It is also true that the collegium system with its slew of vices will continue to cast its shadow on the rosy image of the judiciary as the paragon of justice and will have to be sufficiently revoked or subsequently abjured lest the maturing civil society will rise to clip the wings of this impending tyrant. The NJAC would have only replaced this system of internal despotism with external politicking. History stands testimony to the fact that whenever the executive has faltered, the judiciary has plugged in the gap with its expertise but the riddle of judicial appointments this time has caught both these institutions unaware. It is time we hold the bull by its horns and find a pragmatic way out so that the judge-makers remain wedded to the same principles of impartiality and sagacity they abide by while becoming judges themselves. The independence of the judiciary should not be preserved at the cost of its accountability.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

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A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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