Injudicious shift

Written by Indu Bhan | Indu Bhan | Updated: Aug 20 2014, 07:07am hrs
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 doesnt seem to offer a better institution as it fails to address the concerns of transparency and accountability. The proposed NJC doesnt 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 membersthe 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 President of India for appointment as a senior judge, the Commission needs to cast five positive votes. If two members oppose a particular nominee, that name has to be dropped. This means that the law minister has the veto power to block a nominee if he is able to convince at least one other member. This would vitiate the selection process in the initials stages only. There must also be absolute clarity about the manner in which the two eminent persons are to be selected. To ensure judicial independence, it has become necessary that the eminent persons are selected by the Chief Justice.

Besides, the legal experts feel that Commission must have a retired Supreme Court judge and a retired high court judge as its seventh member for appointments to the Supreme Court and high courts, respectively, so that the criteria for selecting judges is carefully addressed rather than giving the executive a major say. With regard to the appointment procedure, they feel that the exercise of a veto by any member must be accompanied by reasons and disclosed publicly.

It will be quite interesting to see how the judiciary will be able to retain its independence once the issue comes up before it. As of now, Chief Justice RM Lodha has expressed absolute faith in the collegium system.