Don’t close the door on NJAC as yet

The argument that the independence of the judiciary is jeopardised by the creation of a National Judicial Appointments Commission is superficial

Updated - August 26, 2014 12:25 am IST

Published - August 26, 2014 12:24 am IST

GIVE IT TIME: There are many shortcomings in the Judicial Appointments Commission as formulated in the statute, but much will depend on how it will function in practice. Picture shows lawyers at the Madras High Court.

GIVE IT TIME: There are many shortcomings in the Judicial Appointments Commission as formulated in the statute, but much will depend on how it will function in practice. Picture shows lawyers at the Madras High Court.

The Lok Sabha and the Rajya Sabha have passed the National Judicial Appointments Commission Act, 2014 (NJAC Act), and the Constitution (99th Amendment) Act, to give constitutional status to the National Judicial Appointments Commission (JAC) to appoint judges to the Supreme Court and High Courts. Rarely has a legislation of such importance been approved by the two Houses of Parliament unanimously. This is the clearest endorsement of consensus of public opinion in the country: that the judicially created collegium system of appointing judges requires replacement by a new system of appointment.

The JAC is to be composed of six members — the ex-officio Chief Justice of India, two senior-most judges of the Supreme Court, the Law Minister, and two “eminent persons” nominated by a committee comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition. There is nothing to suggest that the two “eminent persons” will be the nominees of the government.

Speculative assumption Critics have faulted the new JAC principally on the ground that the three judicial members of the commission will not have a predominant vote in the selection of a judge. They criticise the provision in the NJAC Act which states that the JAC cannot recommend a person for appointment as a judge if any two members of the commission do not agree for such a recommendation. It is suggested that this provision takes away the power of the three ex-officio judges of the Supreme Court to recommend a judge, and gives a veto to two non-judicial members. This is a speculative assumption to condemn the new system. The judicial members may themselves be the opposing two members of the recommendation made by others, which would allow the views of the judicial members to prevail. If the basis of the new legislation is to take away the supremacy of the previous collegium to appoint judges, there surely cannot be a provision in the new law to retain that power by giving a decisive vote to the judicial members of the commission.

“There is no basis for the theory that the judiciary must always have a controlling voice in judicial appointments”

The government was anxious to avoid an impression that it would overrule the commission. The JAC Bill was therefore amended in the course of the debate in the Lok Sabha to delete the requirement of a unanimous reiteration by the commission if the President required it to reconsider its recommendation. Thereby, the Bill took away the power of the President or the executive to overrule the recommendation of the JAC, which was not unanimous.

The insistence that the judicial members of the commission must have the predominant vote in the commission is founded on a theory that the judiciary must have the right to appoint judges. This is not the constitutional requirement in any jurisdiction. The U.K. Judicial Appointments Commission, a body doing excellent work, consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman. One of the chairpersons was, till recently, a lay person of Indian origin, Baronnes Usha Prashar. There is no predominance of judges in the U.K. Commission.

Superficial argument The argument that the independence of the judiciary is jeopardised by the creation of a JAC is superficial. Even prior to the collegium system, for over 23 years, judges of the Supreme Court, including some outstanding judges, were appointed by the President after consultation with the Chief Justice of India and other judges of the Court. It was only during the Emergency period that this system was misused by the government, which led to the judgment in the Second Judges Act in 1993. In Australia and Canada, judicial appointments of the superior courts are made by the executive after wide consultation, including with the judiciary. There is therefore no basis for the theory that the judiciary must always have a controlling voice in judicial appointments to secure judicial independence.

The JAC will become functional only after a long time. The Constitutional (99th Amendment) Act has to be ratified first by half the States which will take several months. A permanent secretariat to back up the functioning of the JAC has to be created. Regulations have to be formulated for its functioning, particularly for the criteria of suitability for judicial appointments. There are many shortcomings in the JAC as formulated in the statute, but much will depend on how it will function in practice. The collegium system was allowed to function for over 20 years before its unsatisfactory working was acknowledged, even by judges. Instead of condemning the JAC straightaway on the recondite theory of it prejudicing judicial independence, and on the speculation of judicial members of the commission being side-tracked and outvoted by two non-judicial members, why can’t the commission be allowed to function for sometime so it can reveal its merits? As Justice Powell of the U.S. Supreme Court said, “Democratic institutions are weakened and confidence in the Court is impaired when we appear unnecessarily to decide sensitive issues at the very time they are under consideration within a prescribed constitutional process.”

Already petitions have been filed against the JAC in the Supreme Court, and eminent lawyers have said they will move the Court to declare the commission illegal. Whether they will succeed or not, it is unfortunate that such a challenge in the Court will throw the system of appointing judges in a cloud of uncertainty.

(T.R. Andhyarujina is a senior advocate of the Supreme Court and the former Solicitor General of India.)

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