Lok Sabha has passed the landmark National Judicial Appointments Commission (NJAC) bill. After its passage in Rajya Sabha – likely in view of support from parties across the spectrum – its enactment in to law is a foregone conclusion.
NJAC will replace the extant collegium system whereby a group of senior most judges of the Supreme Court (SC) under chairmanship of Chief Justice of India (CJI) recommend appointment of judges of high courts and their chief justices as also the judges of SC.
Government of India (GoI) makes appointments on the basis of recommendations of collegium. The former can at best send back recommendation for re-consideration. But, when collegium reiterates its initial choice, GoI has no option but to fall in line.
The collegium system has been in vogue for over 2 decades since 1993. It has been at the centre of controversy with allegations flying thick and fast and proliferation of instances of nepotism and corruption in the appointment of judges.
The situation reached its nadir when Markandey Katju, Chairman, Press Council of India and ex-judge SC revealed political pressure on collegium – to a point of even threatening collapse of then government under UPA I – to grant extension to a ‘tainted’ judge of Madras High Court and then CJI acquiescing in.
The very act of empowering a group of judges of SC with no clear-cut guidelines and opacity of the arrangement makes the system inherently vulnerable to manipulation. Growing political interference and inability or lack of determination on part of CJI or its members to resist has made matters worse.
The growing disillusionment with the collegium system forced the erstwhile UPA regime to think through an alternative and evolve consensus around this. The recommendations of Law Commission strongly arguing for NJAC also came in handy.
BJP which as main opposition party in Lok Sabha under UPA dispensation had vociferously articulated dire need for debunking the much maligned collegium system, has on assumption of office, moved with alacrity to take up NJAC bill for consideration and passage by the parliament.
Without any doubt, setting up of NJAC with full constitutional backing (a constitutional amendment bill has also been passed enabling its creation which will also need ratification by 50% of state legislatures followed by President’s assent) will be a huge improvement over extant arrangement.
Under the statue amendment bill, CJI will head the commission. Besides the CJI, the judiciary will be represented by 2 senior judges of Supreme Court (SC). Two eminent personalities and the Law Minister will be the other members of the proposed body. That adds up to a total of 6 members.
The collegium consisted entirely of judges leading to an unusual syndrome of ‘judges themselves appointing the judges’ and hence inevitability of biases creeping in. In contrast, the composition of NJAC is fairly balanced giving adequate representation to public – through eminent personalities – and to parliament and executive through the Law Minister.
The selection of eminent personalities will be made by a panel consisting of the Prime Minister, CJI and leader of opposition or single largest party in Lok Sabha. The mechanism is in perfect consonance with democratic norms with the ruling party and opposition getting an equal voice. Besides, the judiciary is also represented through CJI.
The criteria and procedure laid down for selection of judges by the commission is very rigorous and stringent. Thus, out of 6 members any two have the powers to bloc a recommendation. Thus, forget simple majority or even 2/3rd majority, selection of a person will require backing of minimum 5 out of 6.
The NJAC bill had a provision under which in case, President returns recommendation of the commission, latter will have to return the recommendation for reconsideration “unanimously”. This tantamount to giving veto power to government in rejecting any name even in case it was passed 5-1 by six member commission.
It is not clear as to what prompted government to insert this anomalous provision. It would be preposterous to impute any motive to a government which on its own volition has come up with an objective, balanced, merit based and transparent system for appointment of judges.
Perhaps, that might be to deal with an extraordinary – very rare scenario though – whereby all the 5 members other than Law Minister gang up to vote for a person who may not be the best choice when viewed ‘holistically’ taking in to account all factors.
Indeed, it can be surmised that such a holistic perspective is available with the President who ordinarily would go by commission’s recommendation on 5-1 yet, could use his prerogative/discretion to address extraordinary situations.
Notwithstanding the above, in deference to the demand made by opposition members, the government has dropped the controversial provision. In other words, the panel will not have to return the recommendation for reconsideration unanimously.
The amendment makes it abundantly clear that if the recommendation is returned to the President without a unanimous recommendation, the candidate will have to be appointed.
After approval by the parliament, it may take close to an year for the entire legislative process to be completed – as government needs to obtain ratification of the constitutional amendment bill by a minimum of 50% of state assemblies.
Therefore, by the middle of 2015, we can look forward to a fairly robust and transparent institutional structure in place to give us judges who are selected solely on “seniority”, “ability” and “merit”. This will reinforce trust and confidence of public in Indian judiciary which has been substantially eroded especially in last 2 decades.
Freedom from political interference and associated endemic problems of nepotism, favoritism and corruption will be an added bonus. The new arrangement will also help in making a dent on high pendency of cases in high courts and SC.
Prashant Bhushan has raised a point about lack of norms and transparent procedures for inviting applications, drawing a panel of suitable candidates etc. These are matters of details and one can be reasonably sure that NJAC will measure up to the task.