Granvile Austin noted, “An Independent Judiciary begins with who appoints what calibre of judges

The hon’ble Supreme Court’s admission of petitions challenging the Constitutionality of the National Judicial Appointments Commission must be read in light in of this statement and must be interpreted in the scratch of upholding the notion of Independence of Judiciary.

Overview to the Judicial Appointment Commission Structure

Hitherto, the judges of the hon’ble Supreme Court and hon’ble High Courts were appointed in consonance with Articles 124 and Article 217 respectively which provided for appointment of Supreme Court Judges by the President of India in consultation with the Chief Justice of India and Chief Justices of the respective High Courts, Chief Minister and Governor of the respective states for the appointment of Judges to the High Courts.

The Bill, which has now been duly passed by both the houses and assented to by the president and notified by the executive, is called the National Judicial Appointments Commission Act (hereinafter referred to as the Act or NJAC Act).

NJAC Act added Article 124A into the Constitution of India which creates a National Judicial Appointment Commission, consisting of six members, i.e. the Chief Justice of India (Chairman), two other senior most judges of the Supreme Court of India, Union Minister of Law and Justice and two other eminent persons which are to be nominated by the collegium which consists of the Prime Minister of India, the Chief Justice of India and the Leader of Opposition.

Other than its advisory functions, the most significant task of this Commission is to recommend persons for the post of Chief Justice of India, Chief Justice of High Courts, and other Judges according to the procedure mentioned therein. The impugned Act, seeks to promote transparency and accountability in the working of Judiciary in the Country by ensuring participation from both, the judiciary as well as the executive in the matter of appointment of judges in the Constitutional Courts of India. The Act has now come into force as the executive has notified it in the month of April, 2015, even when petitions are pending before the Hon’ble Supreme Court, challenging the constitutionality of the NJAC Act and hence raising a significant question as to the integration of functioning of the State.

Brief History of the structure of Appointment of Judges to the Higher Judiciary

The controversies regarding the Appointment of Judges to the higher Judiciary has been prevalent in the Constitutional history of India. Three Judges’ Cases have witnesses this tussle of appointment of Judges and Supreme Court has clarified its position in the Third Judges’ Case i.e. In re Special Reference 1 of 1998  the Hon’ble Supreme Court held that the consultation process to be adopted by the Chief Justice of India requires consultation of Plurality of Judges. The expression “consultation with the Chief Justice of India” in Articles 124, 217(1) and 222(1) of the Constitution of India require consultation of with plurality of Judges in the formation of opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.

The Burning Controversy

Numerous PILs were filed challenging the constitutional validity of National Judicial Appointment Commission Act, primary petition being that of the Supreme Court, Advocates on Record Association represented by eminent jurist and Senior Advocate, Fali S Nariman. The Petitioners have strongly argued that the this NJAC Act is beyond the competence and power of the parliament as it is essentially against the Independence of Judiciary, which is a basic structure of the Constitution, and hence cannot be done away with.

However, on the other hand, MukulRohatgi, the Attorney General of India, while defending the NJAC Act for the Government of India, has maintained that Independence of Judiciary is a basic structure of the Constitution, but Judges appointing Judges is not. He observed that the collegium system is only Judges appointing Judges and does not symbolize the Independence of Judiciary, and hence this can be validly amended by the Parliament.

The Supreme Court while clubbing the petitions challenging NJAC Act, ordered the High Courts not to accept any further petitions challenging the Act till these petitions are disposed of.

 

Possibility of arbitrariness in appointment of the eminent persons

There is an absence of procedure to determine the eminence or correctness for a person to be recommended as an eminent person in the commission. The committee comprising the Prime Minister of India, the Chief Justice of India and the leader of opposition. Hence, this appointment must meet the test against arbitrariness enshrined under Article 14 as no procedure can be arbitrary.

Institutional Integrity of the Office of Hon’ble Chief Justice of India

The contribution of Chief Justice of India in the appointment of ‘eminent persons’ being a committee member, comprising of the Prime Minister of India and the Leader of opposition as the other two members, is one of the prime issues which have been raised in the petition.

The office of the CJI is of distinguished character as it is personification of independence, integrity and judicial primacy. Hence linking the appointment process by negotiations and deliberations with the legislature and the executive can raise severe concerns all across the legal fraternity.

Conclusion

A change in the existing collegium system was proposed only on the premise of ensuring transparency and accountability in the Judicial System. This tussle between the Judiciary and the Executive raises serious concerns all across the legal and political realm of the largest democracy of the world.

Ensuring Judicial Independence is not only Judiciary’s concern, rather it is a question of faith of citizens of a country in the unbiased virtues of the Courts and the legal system. Hence the procedure of appointment of judges can be pointed out to be of prime importance in upholding this claim. The NJAC Act, in its current strata seems to be devoid of this claim, as the Executive acted in haste in order to notify the NJAC Act in the month of April, even when it’s Constitutionality was yet to be decided by the Supreme Court.

The NJAC significantly dents the primacy of the opinion of the CJI in the matter of appointment of Judges since any two members may block a name from being scrutinized, hence violating the crucial virtues of Judicial primacy in the appointment of Judges. Judicial primacy needs to be maintained in order to ensure unbiased nature of the Judiciary, as Government is the major litigating party, in a litigation, in the Courts of Law all across the country. Majority of the cases, which are pending today in the Indian Courts, have Government as one of the concerned parties, and hence if Government, i.e. the Executive plays a crucial role in appointment of Judges, it may well lead to violation of basic principles of Natural Justice let alone the Basic Structure of the Constitution.

Selection of ‘two eminent persons’ requires substantial amount of clarity. A procedure must be established to ascertain the eminence and a benchmark must be set up. The most significant issue which needs to be resolved is ensuring the primacy of every member of the committee appointing the eminent persons, so that no two members could join hands and make the opinion of the third member irrelevant.

The main objective while overthrowing the collegium system was to ensure transparency, then a better and simpler solution is to ensure more transparency and greater objectivity so that the basis of selection is made known to the public. One does not destroy the building if the plumbing is faulty. Hence there is an imminent need to reconsider the NJAC Act in order to safeguard the principles of constitution and upholding a framework which protects principles of Natural Justice.