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.
