Unfortunate that SC struck down NJAC Act
Given how the separation of powers between the three wings of the state—the legislature, the executive and the judiciary—is such an integral part of India’s Constitutional framework, it is clear this cannot be compromised at any cost. Indeed, while the system of appointing judges to various courts, till the 1990s, technically called for consultation with the Chief Justice of India before any appointments were made, the last word really lay with the government. Which is why, it is not surprising that, over the course of three important cases culminating in the Third Judges case in 1998, the Supreme Court created the collegium system to appoint/promote judges across various courts, including the Supreme Court. While this system preserved the independence of the judiciary, the problem was that it had few checks and balances—in case a corrupt judge was appointed, there was no certainty as to how s/he was to be removed. Impeachment is a way out, but this is very time consuming and requires all political parties to be united on it—none of the three cases where judges have been sought to be impeached have resulted in any final action. In the first case, there was no vote since, when this had to happen, Congress MPs walked out of the house; in the other two cases, the judges chose to resign.
It was to try and fix this, while maintaining the independence of the judiciary, that the government came out with the National Judicial Appointments Commission Act (NJAC) which required an amendment of the Constitution. This was done in 2014, ratified by 16 state legislatures and then signed by the President. The NJAC seemed a good middle-ground since it was headed by the Chief Justice of India (CJI), had two other judges as its members, the law minister and two other eminent persons—the eminent persons, in turn, were to be appointed by a committee comprising the CJI, the law minister and the leader of the Opposition or the head of the single-largest opposition party. The NJAC also had a provision that if two of its members did not agree—on appointing a judge or transferring him/her—the recommendation would not be made.
The judiciary appeared to have had reservations about being part of a process in which the balance of power did not lie with it and with the fact that a veto was theoretically held by non-judicial members as well. Theoretically, the political class had a majority in the selection process of the eminent members and once it got its appointees into the NJAC, they could pretty much veto whatever the CJI and his brother judges wished for. And it didn’t help that, with no criterion laid down for whom was to be considered an eminent person, almost anyone could be considered for this post. While the standoff between the executive/legislature and the judiciary is unfortunate—3 appointments in the SC and 392 in various other courts have been stuck over the row over the NJAC and the collegium system—it is to be hoped that some way would be found to inject more transparency and accountability into the collegium’s way of functioning.