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Context

Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

How the Collegium helped to secure the independence of judiciary

• In 1993, the SC held the following:
• The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.
• The process aims at selecting the best and most suitable persons available for appointment.
• The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
• It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
• By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

Threat to the judicial independence

• The framers of the Constitution were alive to the likely erosion of judicial independence.
• On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
• In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
• The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
• The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

Conclusion

The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.

Back2Basics: About the National Judicial Appointments Commission

• The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
• The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
• The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
• The NJAC replaced the collegium system for the appointment of judges.
• The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
• The NJAC Act became effective from April 13, 2015.
• The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
• A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
•  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

Context

Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

How Supreme Court judgment leaves the scope for misuse of UAPA

• The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
• This decision has created a new doctrine.
• According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
• Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
• In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
• The decision has essentially excluded the admissibility of evidence at the stage of bail.
• By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
• Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
• The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
• The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

Misuse of the UAPA

• With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
• This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
•  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
• But as a consequence of UAPA being applied, the accused cannot even get bail.

Way forward

• If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

Conclusion

The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.