Supreme Court Vs Government: Is National Judicial Appointments Commission any better than the collegium?



By Harshmeet Singh

The Indian constitution is a unique study in itself. Some of the most unique features of the world’s longest written constitution include the independence of the three pillars of the Indian democracy – legislature, judiciary and the executive. The controversial NJAC (National Judicial Appointments Commission) Amendment Bill is being seen by many as an attempt from the legislature to encroach the turf of the judiciary and snatch its independence. If the recent events are any indication, the judiciary seems in no mood to let go of its rights.

NJAC – What and Why?

Till now, the appointment and transfer of judges to the higher judiciary (Supreme Court and High Courts) was done by a collegium consisting of the Chief Justice of India and the four senior most judges of the Supreme Court. The system of ‘judges appointing judges’ has been in existence for close to 22 years. According to the Government, this system was giving rise to nepotism and ‘favors’.

To overhaul the process of judges’ appointment, the Government has introduced the National Judicial Appointments Commission. The NJAC would be headed by the Chief Justice of India and would have two senior most SC judges, the Law Minister and two ‘eminent persons’ as its other members. These two eminent persons will be appointed by a committee comprising of the Prime Minister, the CJI and the leader of the Opposition. With only 3 of the six NJAC members belonging to the judiciary, this system tries to take away the controlling powers of the judiciary over the appointment of its fellow judges.

What’s the trouble then?

Our constitution makers, perhaps, had the foresight to visualize today’s Government’s love for uncontrolled power. Thus the constitution provides the power of ‘judicial review’ to the Supreme Court. According to this, the apex court can strike down any law if it tries to change the ‘basic structure’ of the constitution or, if the law isn’t in conformity with the constitution itself.

The validity of the 99th Constitutional amendment Act 2014 and the National Judicial Appointments Commission Act have been challenged in the Supreme Court. Bishwajit Bhattacharyya, a former Additional Solicitor General of India, filed a PIL in the Supreme Court in January this year, terming the NJAC as ‘direct attack on the independence of judiciary’. In his petition, the former ASG said, “The NJAC Act and amendment of the Constitution are unconstitutional and violate the basic structure of India’s Constitution, as various clauses stipulated therein make a frontal attack on the independence of the judiciary as also on the doctrine of separation of powers,” Since then, the matter is in the Supreme Court and the formation of NJAC is still pending.

Close to five months into the hearing of PIL, no side is ready to put the guard down. Last week, the honourable Supreme Court termed the act as ‘unworkable’. The Government, on the other hand, responded by reminding the Supreme Court that since the President has already signed on the bill, the collegium system stands scrapped. Now, if the Supreme Court terms the act as ‘void’, there would neither be a collegium nor any NJAC! While the proceedings go on in the court, Supreme Court has tried to justify the collegium system, saying that it has “limited but sufficient transparency”. The Supreme Court, in fact, has asked the Government to furnish details about the persons with “doubtful integrity” that have been appointed by the collegium in the past.

The constitutional bench, comprising of 5 judges, said, “It (collegium) is not a closed door system, but to throw it open to all and sundry would invite a lot of representations. It still cannot be said that it is not transparent. Just because there have been mistakes here and there does not mean the system is inconsistent or bad.”

The Chief Justice, H L Dattu, has also declined to be a part of the committee which would appoint two ‘eminent persons’  as members of the NJAC, citing that the constitutional validity of the NJAC is still in question. While the Supreme Court is trying to convince the government to turn back to the collegium system, the fact remains that a number of provisions in the NJAC act violate the constitution in their present form.

Eminent persons – Who? How?

The act fails to prescribe any specific procedure or qualification requirements for the appointment of two ‘eminent persons’. While the existence of NJAC itself is based on efforts to do away with the arbitration of judicial appointments by the collegium, the arbitrariness in the appointment of these two members of the NJAC is extremely glaring. These appointments are left to the discretion of the Prime Minister, CJI and the leader of the opposition.

Is the role of executive in judiciary justified?

According to the numbers furnished by the National Litigation Policy of 2010, there are close to 3 crore cases pending in the country. In more than 70% of these cases, the Government is one of the parties involved. In such a scenario, how advisable would it be to give the executive and legislative a say in the appointment of judges to the highest court in the land?

Veto power

One of the provisions in the act says that any two members of the NJAC can veto any appointment. This, again, is an arbitrary provision in the act with no specific directions. The veto powers can be exercised by any two members without any criteria. Such provisions, in fact, go against the democratic values of the country. This provision implies that for any appointment, at least five of the total six members would have to give their consent. So, in other words, there must be an 83.33% majority for any appointment to go through. This number is even higher than the majority needed in the Parliament (67%) for passing critical laws.

The Government seems to be resorting to every trick in the book to get this act through to the National gazette. But it must understand that if the collegium system was arbitrary, the NJAC doesn’t seem to have finely polished corners either.