“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, Judges who can make decisions independent of the political winds that are blowing.”

– Caroline Kennedy

There have been constant efforts by the Supreme Court to preserve the independence of the judiciary and to keep it away from the political winds. To enable the Courts to discharge their multi-faceted functions effectively, it is extremely important that the Court enjoy independence, which has been regarded as the part of the ‘basic structure’ of the Constitution. One such important attempt, which is highly debated, for the independence of judiciary is the appointment for National Judicial Appointment Commission (NJAC) established by the National Judicial Appointments Commission Act, 2014, which came into force from April 13, 2015. This legislation is backed by the Constitution (99th Amendment) Act, 2014 that inserts Article 124A, 124B and 124C which prescribes that a commission comprising of the Chief Justice of India as its chairman, two senior Judges of the Supreme Court next to the Chief Justice, Union Minister of Law and Justice and two eminent personalities (to be nominated by the Chief Justice, Prime minister and the leader of opposition of the Lok Sabha) shall be set up.

The law as it appears in Article 124 of the Constitution acknowledges that in the present state of the country, it would be dangerous to let the executive alone deal with the matter of appointment of Judges, which would render their appointments liable to be made on a political basis, undermining considerations of merit and possible cases. Hence, the executive should be in consultation with persons who are well qualified to give advice on these matters. On the other hand, it does not give sole power to the Chief Justice to make the appointment of his colleagues, recognizing the prejudices of a single person, notwithstanding his eminence.

This position of law was interpreted by the Supreme Court on various occasions. The Supreme Court in S.P. Gupta v. Union of India (AIR 1982 SC 149), also referred to as First Judges’ case, interpreted the law relating to appointment of Judges as it appears on the statute books. In other words, the Court interpreted the word ‘consultation’ of Article 124, as mere consultation and the President could exercise his own discretion in appointment, even if the Chief Justice recommends otherwise. Therefore, the executive came to wield overriding powers. This position, however, underwent a sea of changes in the case of Supreme Court Advocates on Record Association v. Union of India (AIR 1994 SC 268), also referred to as the Second Judges’ case, which devised the mechanism of collegium system. This system gave the primacy of making judicial appointments to the Chief Justice, along with two other senior most Judges of the Supreme Court. This position of judicial appointments was further upheld in the case of In re: Special reference 1 of 1998. The Court reiterated the same principle and the only change that was made was increasing the number of members of the collegium from three to five.

The Parliament through National Judicial Appointments Commission Act, 2014 and the Constitution (99th Amendment) Act, 2014 replaces the current collegium system of appointing the Judges and appoints a commission which shall make recommendations to the President. The Amendment Act has been ratified by 16 States in India. Several petitions were filed in the Supreme Court challenging the constitutional validity of the NJAC and the Constitutional amendment, and some even before the Act was notified. A five Judge Bench in the Supreme Court has agreed to hear the said petitions and directed all High Courts to refrain from making  any judicial appointments based on the recommendations of the NJAC till its final verdict.

The Attorney General of India, Mr. Mukul Rohatgi made submissions in favour of the NJAC (Supreme Court Advocates on Record Association & Anr. v. Union of India (Writ Petition Civil 13 of 2015). It was argued that the collegium system is obsolete and there is an urgent need to change the procedure through which the Judges of the higher judiciary are appointed in this country. The basic problem with the collegium system is that it does not have transparency in its selection and appointment process and attributes apart from the legal knowledge are also to be considered. The senior Judges are carried by their own visions and perceptions about social justice. Further, it was argued that the Judges are not accountable for their recommendations and at times may decide as per their whims and fancies. This, however, has not taken place till today but there is always a possibility of such an event and that shall be a doomed day in the history of the Indian judiciary.

The most essential change that the NJAC brings in is that varied opinions shall be considered while making the recommendation. The Chief justice and the senior Judges may provide inputs regarding the competence of a candidate to be a Judge, the Law Minister may ensure that no bias or unfair practices take place and the eminent personalities may represent the marginal sections of the society or may put forward a layman’s perspective for the appointment. This commission shall have six members, what happens in case of tie and the decision cannot be arrived at? NJAC provides that the recommendation shall be passed over to the President only when at least five members of the commission agree upon the decision. Therefore, the opinion of each member of the commission holds importance and vote of each member is equal. There are about 70 statutes that provide for ‘eminent person’ including the Lokpal and Lokayuktas Act, 2013. Therefore, as stated earlier the eminent persons shall bring a fresh thought to the table.

This issue of NJAC is debated by academicians, students, lawyers, Judges, jurists, eminent personalities etc. and an important question that arises is that whether the judiciary will continue to enjoy its independence? Mohan Parasaran, Former Solicitor General of India, provides an answer to this question. He says that in case a deserving candidate is turned down by the commission, the person can always challenge that decision before the Court. Therefore, ultimately the judiciary is holding an upper hand.

Attorney General in his brilliant arguments also referred to the mechanism for judicial appointments in different countries of the world. The Judicial Appointment commission (JAC) is an independent body that selects candidates for the judiciary in England and Wales. The said commission comprises of 15 members including 5 lay persons, out of which one is a chair person. Australia follows the same practice as England. Judicial appointments in Pakistan take place through a Judicial Commission and Parliamentary committee, having Judges, Retired Judges, Advocates and Members of the Parliament. A Judge in America is appointed by the President and is then confirmed by the United States Senate. The South African model called the Judicial Services commission has Judges, minister of Justice, advocates, legal academicians and laypersons.

Therefore, looking at the shortcomings of the earlier method of judicial appointment, it can be firmly believed that the new mechanism of making judicial appointments through NJAC reflects the basic elements of democracy and accountability, thereby a perfect institution which can prove to be a  machine for restoring peoples’ lost faith in the third pillar that is the Judicial system.