As the NDA government moves to gain a foothold in judicial appointments through the National Judicial Appointments Commission (NJAC) Bill, Law Commission Chairman Justice A.P. Shah on Sunday criticised the proposed law in its present form as “disquieting.” According to Justice Shah it may perpetuate a “culture of trade-offs and sycophancy present in the collegium system of appointment.”
Justice Shah, who was consulted by the government during the framing of the NJAC Bill, described it as a “missed opportunity” for the government to provide guidance on Constitutional values integral to judicial appointments.
He was giving the Annual Capital Foundation Lecture on ‘Judging the Judges: Appointments to the Supreme Court and High Courts.’
According to him the NJAC Bill has not removed the flaws of the collegium system. “Constitutional Courts of this country cannot be run like closed country clubs.” Pointing to controversies like that of Justice P.D. Dinakaran, he said this opaque mode of functioning by the collegium has been one of its major failings.
Since 1993, the Supreme Court has been “packed” with Chief Justices of High Courts elevated by the collegium merely due to their seniority, and without looking at merit and other objective qualifications. This, he said, has led to a “decline in the standard of judges.”
Noting that the Bill erodes judicial independence, he pointed to how non-judicial members in the NJAC can veto a candidate irrespective of the views of three judicial members, including the Chief Justice of India.
“What is more dangerous is that it is likely that the veto power would perpetuate the culture of trade-offs and sycophancy which is present in the collegium system of appointment and makes it even more pernicious – since the trade-offs will not remain internal to the members of the collegium, but will be between the judiciary and the executive,” he said.
The former Chief Justice of India, R.M. Lodha, who was the chief guest at the lecture, said the ultimate goal of a Judicial Appointments Commission is to safeguard independence of judiciary. “There should not be a lurking fear in the judge that here is an authority who appointed me while giving his decision… if there is such a fear, there is no room for judicial independence,” Justice Lodha said.
Mr Shah said it is best that members have a cooling-off period of two to three years to ensure that they are not just independent in fact, but are also seen by the wider public as being independent of the Executive.
In an obvious reference to the former CJI, P. Sathasivam, he said: “One retired CJI whom I had great respect for... I was very disappointed when he accepted the Governor post of a southern State.”
