Injudicious shift?

Aug 20 2014, 01:37 IST
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SummaryWhile the government backs the National Judicial Commission, legal experts believe the body may be ultra vires of the Constitution

The hurriedly-passed National Judicial Appointment Commission Bill 2014, which replaces the collegium system for appointment of judges to the Supreme Court and high courts, has sparked much debate with eminent jurists saying that the National Judicial Commission (NJC) would not survive judicial scrutiny.

While the collegium system, which was in place for quite some time, ensured that interference by the executive was kept to a minimum, the main complaint against it was the secrecy shrouding its functioning and its efficiency which has led to ever-swelling vacancies in the high courts and delays in justice delivery. Despite its many flaws, the collegium has been widely credited with protecting judicial independence, which is a part of the basic structure of the Constitution. But the demand for a change had gotten loud of late.

The BJP-led government proposing this amendment and Parliament passing it undue haste without any meaningful public debate have come under severe criticism from the jurists.

While the government says that the NJC will enable participation of judiciary, executive and eminent persons to ensure greater transparency, accountability and objectivity in the appointment process, legal experts apprehend that it would be struck down by the Supreme Court as ultra vires of the Constitution. They say that the Parliament does not have the right to enact such a Bill without amending the Constitution; besides, it is an attempt to curb the sacrosanct independence of judiciary.

Eminent jurists including Fali Nariman are likely to approach the Supreme Court for scrutiny of the Bill, which according to them, impinges upon the independence of the judiciary.

While there is a broad consensus on the need to reform the manner in which judicial appointments are made and render the process more transparent, the proposed NJC suffers from major faults.

One, the commission doesn’t seem to offer a better institution as it fails to address the concerns of transparency and accountability. The proposed NJC doesn’t assure us of an absolutely perfect system with emphasis on a fearless and independent judiciary. Secondly, it gives the government supremacy in making judicial appointments and block judges if they are not to its liking.

The commission will comprise six members—the chief justice of India as its head, two senior SC judges, the law minister and two “eminent” persons to be selected by a group comprising the prime minister, Leader of the Opposition in the Lok Sabha and the CJI.

In order to forward a name to the

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