At last, the Constitution (121st Amendment) Bill, 2014 and the (NJAC) Bill, 2014 (now Acts), passed by both the houses of Parliament simultaneously in August, last year, have received Presidential assent. While the former gives the NJAC constitutional status and scraps the two decade-old judicial collegium, devised by the apex court itself vide two of its judgments in 1993 and 1998, under which judges appoint other judges to the higher judiciary, the latter provides details about the commission&’s composition, functions and the procedure to be followed for recommending the appointment and transfer of the chief justices and judges of higher courts. The Constitutional Amendment Bill has already been ratified by 17 out of 29 state legislatures, as required under the Constitution. However the government has held its notification right now for a couple of months to complete certain procedural modalities like setting up of a secretariat, recruiting of officials at different levels to man it, framing of rules and procedures, allocating an office to the NJAC and selecting two eminent persons from outside on the panel.
The enabling NJAC law provides for a six-member panel headed by the Chief Justice of India (CJI) and two senior-most SC judges as members, apart from the Law Minister and two eminent persons from civil society, of which one of them would be nominated from among the Scheduled Castes, the Scheduled Tribes, minorities, Other Backward Classes or women. They will be selected by a panel comprising the Prime Minister, the CJI and Leader of the Opposition in the Lok Sabha or leader of the single largest Opposition party in the lower House, for a period of three years. The NJAC also lays down the procedure to be followed by it for recommending persons for appointment of judges to the Supreme Court (SC) and chief justices and other judges to the High Court (HC).
It may be recalled that all political parties, irrespective of their ideological differences, rallied behind the BJP in doing away with the much criticized existing collegium system. Not only does the political executive with the formation of NJAC get the greater say in the selection of judges but it will enjoy the veto power to undo any appointment. Right from the beginning, the judiciary was opposed to the transformation from the old system to the new one which gives veto power to the executive and erodes its powers to keep a check on the executive and legislature. The government should have first threadbare discussed all vital proposed changes with the CJI, other senior judges of the SC and eminent jurists before rushing the two legislations through Parliament to avoid any unforeseen confrontation with the judiciary at a later stage. Former Law Minister, Ravi Shankar Prasad, being new to the job, left certain important constitutional, procedural and functional aspects of the law unaddressed being in an indecent haste to lengthen the list of BJP-led NDA government&’s achievements before Independence Day.
There has also been a grave procedural error in getting both the bills simultaneously passed in Parliament. The Constitutional Amendment Bill, amending Article 124 of the Constitution, ought to have been passed first by the Parliament, then ratified by at least 50 per cent state legislatures and finally sought Presidential assent. Only thereafter the other enabling bill – the NJAC – could have been passed by both the Houses of Parliament. In doing so, the members of the state assemblies would have considered all aspects of the new mechanism freely and with requisite independence. But when it was already cleared by all political parties in Parliament unanimously, they had little choice in exercising their conscience over all aspects of the proposed dispensation.
No doubt, there is an apparent parity between judicial members (the CJI, and two senior-most SC judges) and executive representatives (the law minister and two eminent persons) in the six-member NJAC. However, any one member of the two eminent persons from civil society can easily veto any decision. While the veto could act as a restraint on a decision taken by one bloc, it could be seen as undermining the judicial members’ opinion. It means a stronger executive may also take on a more muscular role over the appointment process. Its highhandedness in segregating the proposed name of Gopal Subramaniam for appointment as SC judge last year despite the judge-dominated collegium system being in existence seemed to confirm this fear. Not only this, the CJI could be easily outvoted by the political class when it comes to choosing eminent persons. Can the CJI be expected to lead such an NJAC which replaces the collegium system without consulting him and his fellow judges, apart from affecting the independence of the judiciary that forms a part of the basic structure of the Constitution?
In my humble opinion, it would have been rather more appropriate had the NJAC been a seven-member body instead of six. The seventh member could be a retired Supreme Court judge in the case of appointing SC judges and a retired high court judge for choosing state HC judges. No veto power, in all fairness, should have been given to any of NJAC members including the CJI. In the case of any conflict over the selection of a particular person as judge, the matter should have been decided by way of voting to let the majority view prevail. When we have this kind of functional voting process in our Election Commission, why can’t be have it in the new selection process of judges to decide all conflicting issues in a truly democratic and transparent manner? This apart, our hon’ble Supreme Court and High Court benches also decide cases on majority-minority basis and the majority view is regarded as the final
There is no criteria for selecting two eminent persons to the panel. It is not clear whether they will be appointed by consensus or by way of voting process. Moreover, when composition of the commission is embedded in the Constitution, how can its selection process be relegated to statutory rules that leave room for discretion? The role of outsiders in the NJAC is significant in the sense that an eminent member favored by the government could well toe the line of the law minister. The government could go on casting the veto till it got a man of its choice. As a result, this power may lead to the appointment of pliable judges, political interference in the delivery of justice and a threat to the much-cherished independence of the judiciary. Over and above, this will result in gridlock or deadlock and there will be considerable delay in appointing judges or filling vacancies in law courts as is the case now.
Needless to say that several other significant aspects – the criteria of suitability of judges, the conditions for selection, and procedures on consultation with other judges and eminent advocates, and the manner of eliciting the views of the Governor and Chief Minister – have been left to regulations to be framed by the NJAC itself. Giving the power to amend these regulations to a panel that will itself keep on changing from time to time instead of being cast in law may again undermine judicial independence, as the norms could be tweaked for reasons of expediency and convenience. The new dispensation is already under challenge in the SC and if it fails judicial scrutiny, the government will have only itself to blame for the mess. Perhaps, a process of broader consultation could have helped the cause better.
In its present form, the NJAC does not ensure a better, collaborative, transparent and accountable system, as promised. It simply replaces an opaque collegium system with another judicial body whose selection process may turn out to be time-consuming, non-participative, non-transparent and non-accountable. In view of its apparent flaws, multiple defects, lack of clarity on several vital aspects and predominant role of the political executive, the remedy is going to be worse than the malady, to say the least.
While making any change in the existing system of judicial appointments, it is absolutely imperative that the government does not turn the clock back and impede the hard-fought gains in autonomy that the judiciary has made from the days of emergency when it was expected to be “committed” not just to the Constitution but to the regime of the day.
However, whatever the system of appointment and transfer of judges of higher judiciary, there should be no compromise on its independence – the touchstone of the Constitution . The eminent jurist, late Nani A. Palkhivala, who was a crusader for judicial independence, had aptly said once, “An independent judiciary is the very heart of a Republic; the foundation of a democracy, the source of its perennial vitality, the condition for its growth, and the hope for its welfare – all lie in an independent judiciary”.