Judging the judges

For starters, the following abbreviations are used:

SC – Supreme Court

HC – High Court

CJI – Chief Justice of India

PM – Prime Minister

NJAC – National Judicial Appointments Commission

On August 11, 2014, the National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha and was passed within three days in both the houses. This speed and efficiency in passing a crucial law is rarely seen in the Indian context.

What is it about this law that created the necessary political will without the usual drama and rhetoric in Parliament?

Briefly, the bill along with the 121st Constitutional Amendment Bill aims to restructure the way appointments are made to the higher judiciary i.e. the HCs and the SC. These bills once brought into law will allow the executive to have a say in the judicial appointment process.

Not surprisingly, almost all political parties favoured such a legislation. What has been the procedure for the same in the past?

Article 124(2) of the Constitution provides for the method of appointment of judges of the SC. It says that the appointments are to be made by the President after consulting any number of judges of SC and HCs that the President deems necessary for the purpose. However, in a Parliamentary system decisions are taken in the name of the President by the Council of Ministers.

This means appointment of judges was the prerogative of the executive. Through 3 landmark judgements often referred to as the Three Judges Cases arose the collegium system. Through these judgements, the SC interpreted the constitution in such a way that the entire process of appointment came under the judiciary itself and the executive lost its say. Post 1993, appointments were made on recommendations of a collegium comprising the CJI and a group of senior judges. This made India one of the very few countries where judges appointed themselves.

Why do we need a new system – a critique of the collegium system

  1. Against theory of Separation of Powers – On face value it would seem that separation of powers between the legislature, executive and judiciary requires judiciary to operate independently as in the collegium system. However, Separation of Powers does not put these organs of the state into watertight compartments. An essential corollary of this theory is the Doctrine of Checks and Balances whereby, each organ exercises some control over the other organs so that there is no concentration of power. Under the collegium system however, the judiciary was virtually unhindered.
  2. Functioning including the procedure followed while making recommendations and deliberations of the collegium were not transparent. According to Justice Ruma Pal (retd.), functioning of the collegium is one of the best kept secrets in the country.
  3. Various allegations of nepotism were made against the collegiums from time to time. It goes without saying that these have debilitating consequences for the judicial system which is the protector of our Fundamental Rights.

System proposed by the bills

  1. A National Judicial Appointments Commission will be established. This will be a broad based 6 member body and comprise a member from Executive (Law Minister), members from Judiciary and two external members.
  2. The functions of this commission would include:
    1. Recommending names for post of SC judge, HC judge, CJI.
    2. Recommending transfers of HC judges.
    3. Ensuring that the persons recommended are of ability and integrity

Clearly, both the Judiciary and Executive will now have a say in the appointment process. Some questions that we need to answer

Q) Does this militate against the Separation of Powers which is a basic feature of the constitution?

No. As previously discussed, taking into account the executive’s opinion is in fact crucial to ensure checks and balances and sustain a healthy separation of powers

Q) Does the new procedure threaten the independence of our judiciary?

Independence implies taking decisions and making judgements without fear or favour. It means that there is no external pressure on the judges to decide a case according to anyone’s whims and fancies.

Q) Is there possibility in the new system where such independence is threatened?

Yes. This could happen in two ways:

  1. HC judges delivering verdicts favourable to the executive so as to ensure the Law Minister recommends their name for elevation to the SC.
  2. The central government has been given the power to appoint officers for discharge of functions of the commission. It is feared that these officers could act as the eyes and ears of the centre in the commission. Further, payments and allowances to the external members are to be decided by Central Government which might allow for a quid pro quo (something for something) between them where these members would always side with the Law Minister in return for higher payments

Was the collegium system devoid of such loopholes?

No. The pitfalls of the collegium system have already been discussed. Executive interference is not completely ruled out in the collegium system either.

So what is the verdict?

Any reform measure must improve upon the existing situation. The main opposition to thecollegium system was on account of its non-transparent and secretive nature. If these loopholes are not fixed, the new NJAC might become just another collegium. We need to ensure that the working of the NJAC is open and transparent. The procedure followed by the commission while making recommendations must be fair and objective. In this endeavour, we might take a lesson on two from the United Kingdom’s JAC.

Candidates for judicial office upto HC and tribunals in Wales and England are selected by a JAC. The procedure is based on merit through open and fair competition:

  1. When JAC receives vacancies, it advertises the selection exercises on its website.
  2. Applications are submitted followed by shortlisting, panel interviews, role play interviews, presentations, etc.
  3. This is followed by consultation with Lord Chief Justice and financial, criminal, professional background checks

Therefore, procedure is open, fair and transparent.

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