The Parliament, recently passed a Constitution amendment bill that will facilitate setting up of a commission for appointment of judges, replacing the 20-year-old Collegium system which was under severe criticism. The bill will come into force after ratification by 50 per cent of the state legislatures and this process could even take up to eight months. After ratification, the government will send it to the President for his required assent.
As most of the people have a basic idea of the Collegium system and the recent National Judiciary Appointment Committee (NJAC), therefore, the main focus of this article would be on the reasons as to why the collegium system needs to be replaced with the NJAC.
The Parliament has made it clear that the Judiciary cannot overtake the whole judicial appointments process which goes against the grain of the constitution, as rightly said by our Finance Minister, Mr. Arun Jaitley, “the effort is now to restore back what is the spirit of the original Constitution” and have checks and balances in place.
In the event so far, the self-selecting procedure, created by the judges themselves in 1993 is unique to our country. Other democracies are not worse off in the matters of judicial independence only because they have more “participatory” systems of appointment. Independence is acceptable, but it would be even better along with the touch of accountability. So far, the central issue of democratic accountability has either not been addressed, or swept under the carpet. This is the first reason why the collegium system needs to be scrapped. Furthermore, a recent Constitutional Bench judgment has created consternation wherein five judge bench of the Supreme Court held that reservation in super specialties in the faculty of the All India Institute of Medical Sciences (AIIMS) was unconstitutional The legal profession will assess professional merit only in terms of “technical” skills.
What is disturbing is an observation in the penultimate paragraph that “the very concept of reservation implies mediocrity.” There is no nuance here, no qualification, just a bald statement. This is the judicial perception of reservation, while applying a 63-year-old Constitution which has affirmative action written into it.
The High Court Chief Justices have occupied their positions for as little as three to six months en route to the Supreme Court. Little concern has been shown for the effect that these short-term appointments have on administration in the High Courts. Our constitution states that the executive will appoint the judges of the Supreme Court and high courts after ‘consulting’ from the judiciary and not the other way round as per article 124 and 217. Under the Collegium system the judges used to appoint other judges and the government could merely ‘object’ to their nominations. Hence, there was a need to introduce NJAC bill to end such usurpation of powers.
There were accusations being made by the eminent personalities which opines that the Judiciary was not consulted while framing the constitution of NJAC to which clearance has been given regarding the paramount powers of the Parliament in framing new laws and introducing constitutional amendments as well as the Judiciary’s scope for raising objections has been granted to them in case of some loopholes being excavated. Further another such contention raised in against objectifies the NJAC role in undermining the role of Judiciary in the appointment and transfer of judges. It was argued that since NJAC is itself six member panel out of which one will be the CJI and remaining to be senior most SC Judges and in case any two members object to nomination, the matter shall not be pursued further.
The concept of separation of power couldn’t be justified in the judicial appointments as it has been considered as the intrusion of executive which is ‘unacceptable’. But one fails to understand that this democratic structure is about giving supremacy in the hands of the elected representatives. This appointment shall also not to be considered as the intrusion as the judiciary while appointing, could have situation where the person has been appointed not because of his ability to perform but the reputation he carries with it. In such circumstances it would be apt if some other organ would be provided with the responsibility of appointment as there are more chances that such appointment would be free of any biases or prejudices which NJAC provides.
The NJAC may appoint 68% of SC judges and 80% of the HC judges in the next 5 years. It may not be the best thing to happen to judicial appointments, but the sight is better than the opaque collegium system. We can fix the warts once they are visible. Parliament can always fix what is broken, but right now it is the collegium system that is broken and not the NJAC.