The Constitution (121st Amendment) Bill, 2014, passed by the Parliament has proposed the establishment of a National Judicial Appointments Commission (NJAC). The NJAC will replace the collegium of judges, which is currently responsible for appointments to the Supreme Court of India and the High Courts.
The idea of such a constitutional commission is a sensible one, especially given the increasing dissatisfaction with the opaque functioning of the judicial collegium.
But the Parliament ought to have been careful not to throw the baby out with the bathwater. Despite its many faults, the collegium has been widely credited with protecting judicial independence, its raison d’etre and a fundamental prerequisite of the rule of law. In the two decades since, while other deficiencies have plagued the collegium, unbridled executive interference has not been one of them. In its collective anxiety to replace the collegium, the Parliament has failed to incorporate the collegium’s key safeguard against an erosion of judicial independence, i.e., a predominant voice for the judiciary in appointments. Experience demonstrates that a failure to give the judiciary preponderance in judicial appointments, especially in India’s constitutional democracy where the judiciary is the only real check on the legislature and executive, is prejudicial to judicial independence. As Nani Palkhivala powerfully described it, executive dominance immediately prior to and during the Emergency left our Constitution, specifically the judiciary, ‘defaced and defiled.’ For the nation to be once bitten and not twice shy is to take a blinkered view of this history.
However, in incorporating judicial preponderance, the cabal-like functioning that the collegium has often been accused of must not be replicated. Two checks are necessary: first, the NJAC must have a seventh member who is a retired Supreme Court judge for Supreme Court appointments and transfers between High Courts. For appointments to a high court, this seventh member should be a retired judge of the concerned high court. The former must be appointed by the Prime Minister, leader of the opposition in the Lok Sabha and the Chief Justice of India whereas the latter must analogously be appointed by the Chief Minister of the state, leader of the opposition in that state and the chief justice of the high court. This proposal will ensure that appointments to high courts are not entirely dictated by the Centre. It deserves the consideration of state governments to whom the constitutional amendment will now be sent for ratification. Secondly, a key modification is necessary to the appointment procedure. The exercise of a veto by any NJAC member must be accompanied by reasons, which must be publicly disclosed. Currently , this is not provided for. A failure to disclose reasons will allow pernicious prejudices that have often prevented fine judicial minds from being elevated to the Supreme Court to persist. Transparency, a key leitmotif of the reform of the appointments process, demands such disclosure. It is also imperative that the criteria for selecting judges, and other key regulations, are carefully formulated by the NJAC itself and not left to the executive.
Judges have been appointed to the Supreme Court who have not delivered any significant judgments during their high court tenures. This is not peculiar to collegium appointments but happened during the period of executive dominance too. For elevation of judges, the NJAC must ascertain the number of judgments delivered, undertake an assessment of their quality and the judges’ adherence to values of judicial life. For assessing lawyers and jurists, the extent and quality of their practice or academic work and probity of conduct must be gauged. The NJAC would do well to study the workings of Judicial Performance Evaluation programmes in several states in the US and establish well-defined criteria to assess potential adjudicative ability.
Without such criteria being incorporated and publicly known, the establishment of the NJAC is meaningless. Worse still, without judicial preponderance, its very existence has the ominous potential of setting the clock back on the nation’s long quest of rescuing the judiciary from the clutches of executive caprice. No matter how noble the professed intention of the government in proposing this amendment, and Parliament in passing it, the undue haste with which the bills were piloted through, the lack of meaning full public debate and the complete absence of genuine parliamentary scrutiny, suggest otherwise. They demonstrate a powerful government in an inexplicable hurry, and a lame-duck Parliament seemingly failing to grasp the magnitude of its actions, the effects of which will far outlive its members’ tenures. If the NJAC is to be a genuine third way for judicial appointments, let it be a way that is underpinned by respect for the judiciary, pervaded by transparency and alive to the lessons from India’s chequered history of judicial independence.
(Source: An article by Ms. Ruma Pal and Mr. Arghya Sengupta in Times of India dated 17-08-2014).
