The Supreme Court of India and the High Courts, described as the most powerful judiciary in the world, are witnessing dramatic changes in their institutional structure. Pending notification, the legislature has passed the Constitution (121st Amendment) Bill, 2014 and The National Judicial Appointments Commission Bill, 2014 to regulate the procedure for recommending the appointment and transfer of the Chief Justices and Judges of these higher courts, marking a watershed in judicial history. The new law provides for the setting up of the National Judicial Appointments Commission (NJAC), a six-member panel headed by the Chief Justice of India, and includes two senior-most Supreme Court judges, the Union Minister of Law and Justice and two ‘eminent persons’ nominated by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition. Although controversial, this represents a much-needed reform of the older collegium system. That system was a judge-devised practice of appointments that evolved out of the ‘three-judges cases’ (1982, 1993 and 1998) wherein the Chief Justice along with a panel of senior-most judges would make a binding recommendation to the President on the appointees. This model was a reaction to blatant favouritism by the executive that marked appointments until the Supreme Court decided to change the procedure. To avoid charges of favouritism, the collegiums relied on seniority, which only encouraged more mediocrity.
Although such an inter-institutional model has the potential to enhance merit and diversity in the judiciary, it is the fine print of law that raises questions. With three of the six members being judges, a decision of the Commission can be vetoed by any two members. The judicial members of the NJAC lack the preponderance in voice necessary to maintain independence. The fear is that the NJAC may encourage High Court judges to give pro-government rulings with the object of gaining eventual promotion to the Supreme Court. This problem was dealt with by the Venkatachaliah Committee, endorsed by the Vajpayee government, which suggested a panel of three judges, the Union Minister and only one ‘eminent person’, thus reducing the scope for executive interference. Having a relook at this report might have been of value. But the BJP has ignored it and instead demanded more say in the NJAC; the Opposition did not seem to have any complaints about the procedure either. With several influential lawyers criticising the law for being a political assault on judicial independence, the constitutionality of the law is about to be challenged in court. Whether this would eventually lead to a conflict between the two wings of the government, is something to be seen.
