Judicial appointment conundrum continues; NJAC issue raised again

Both commission and collegium system have their own infirmities

The minister’s statement, curiously, comes just days after CJI NV Ramana’s remarks about debate in law-making being given the short shrift by parliamentarians. Nevertheless, whether a new NJAC is the need of the hour merits discussion.
The minister’s statement, curiously, comes just days after CJI NV Ramana’s remarks about debate in law-making being given the short shrift by parliamentarians. Nevertheless, whether a new NJAC is the need of the hour merits discussion.

Law minister Kiren Rijiju has told Parliament there is a groundswell for bringing back the National Judicial Appointments Commission (NJAC) Bill. The minister’s statement, curiously, comes just days after CJI NV Ramana’s remarks about debate in law-making being given the short shrift by parliamentarians. Nevertheless, whether a new NJAC is the need of the hour merits discussion.

The collegium system of judicial appointments, while seen as an important instrument to preserve the independence of the judiciary which is part of the basic structure of the Constitution, is not without problems. Questions have been raised in the past about the transparency of appointments. While some experts argue that the October 2017 resolution of the Supreme Court collegium to publish online all its future resolutions addresses this concern, the effect, all things considered, is only partial. The opacity over the eligibility criteria/considerations behind a recommendation for an appointment or a transfer remains. Indeed, some recent decisions reflect this starkly; then Chief Justice of the Tamil Nadu High Court Vijaya Kamlesh Tahilramani resigned in September 2019 after the collegium upheld its decision to transfer her to the Meghalaya High Court, one of the smallest in the country. Bear in mind, Tahilramani was the senior-most High Court judge in the entire country at the time. The collegium responded to the controversy by merely saying it had “cogent reasons” and would reveal these if required. If indeed there were genuine, unimpeachable reasons behind its final decision, these should have been brought to light.

There are other instances, mostly transfers, where the collegium’s decision has met with stiff resistance from the legal fraternity because it felt these to be unfair or insufficiently substantiated. Significantly opaque selection also means it is hard to zero in on any conflict of interest a candidate may have until after an appointment is finalised. Other than that, the current appointment mechanism has meant that the higher judiciary has become a fraternity of sorts. It has created an “uncle judge” syndrome and led to the predominance of members of the bar in the higher judiciary over those promoted from the subordinate judiciary that, arguably, represents a more diverse pool.

That said, the NJAC Act passed in 2014—and struck down by the Supreme Court in 2015 as unconstitutional—suffered from serious lacuna. While the Second and Third Judges judgments of the Supreme Court had consolidated the primacy of the judiciary in judicial appointments, the NJAC Act could have potentially diluted this with its veto provision. Any two members of the six-member commission could veto an appointment; given the Union law minister and two “eminent” non-judicial members—appointed by a committee comprising the CJI, the law minister and the leader of the principal opposition party—could in theory checkmate the three judicial members (the CJI and the two next senior-most judges of the apex court), the balance of power could have very well shifted to the legislative pillar of the state. Also, with no defined criteria of “eminence”, even political ideologues, some of whom may believe in a “committed judiciary”, could have become tools to fulfil the political class’s objectives.

At the same time, judicial appointments can’t be left to the judiciary alone. The many pending vacancies in the higher judiciary is evidence the collegium system has only prolonged a turf war; the government claims it is doing “due diligence” on some recommendations but nearly four of every 10 slots for High Court judges are vacant. Indeed, delays, deliberate if the executive is no disinterested party or otherwise, can effectively mean shorter terms for judges even if their appointments are eventually cleared. A more robust alternative that protects judicial independence is needed.

Get live Stock Prices from BSE, NSE, US Market and latest NAV, portfolio of Mutual Funds, Check out latest IPO News, Best Performing IPOs, calculate your tax by Income Tax Calculator, know market’s Top Gainers, Top Losers & Best Equity Funds. Like us on Facebook and follow us on Twitter.

Financial Express Telegram Financial Express is now on Telegram. Click here to join our channel and stay updated with the latest Biz news and updates.