Independence of Judiciary and NJAC Act

System of 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 makes binding recommendation to the President on the judicial appointees has been revived by recent verdict of SC. However this system has lot of infirmities, in past to avoid charges of favouritism, the collegiums relied on seniority, which only encouraged more mediocrity.

Grounds of declaring Art 124 A or NJAC act unconstitutional

  • Veto of any two members on decision where 3 out 6 members are judges was seen as infringement of independence of judiciary
  • Selection of two eminent members by committee of PM, Opposition leader and CJI was seen as political appointment hence compromise on independence of judiciary
  • Inclusion of Law minister in the committee was also seen as interference of executive in judiciary

The fear was 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.

Criticisms of the verdict

Many leaders have termed the decision unfortunate and surprising. Politicians across the spectrum have united in criticizing the decision as it didn’t gave chance for NJAC to function and analyze its outcome. There is also charge of democratic convention being controverted as the constitutional amendment gained unanimous support across political spectrum and was also ratified by more than 20 states.

Independence of the judiciary forms part of the basic structure of the Constitution is fairly uncontroversial. The judgment, however, was based on an additional assumption: that primacy of the judiciary in the appointments process is indispensable for the independence of the judiciary and, by implication, forms part of the basic structure. This is an ambitious claim. As the dissenting judge records, there may be alternative means of protecting the independence of the judiciary, and Parliament must have a choice amongst them.

The most remarkable aspect of the Supreme Court’s judgment is that it abandoned its standard process of constitutional review. The Court usually adopts a three-stage process. It first decides whether or not a law, as ordinarily interpreted, is valid. If the law is not valid, the court moves to the second stage — considering whether it can be interpreted in compliance with constitutional requirements. This is an important stage, which gives the Court the flexibility of protecting the Constitution while limiting the exercise of democratic power to the smallest possible extent. Finally, only if the law cannot be so interpreted, is it struck down.

In this case, the Supreme Court leapfrogged from the first stage to the third.

Evolution of middle way

By suggesting a separate hearing in November to do away with deficiency of the collegium system SC has shown flexibility to work with executive to resolve the difference over judicial independence and charge of nepotism in appointment of judiciary. Now it depends upon govt whether it submits its proposal for SC scrutiny in November or takes the way of constituting another commission on the lines defined by the constitutional bench.

Independence of Judiciary

NJAC and the constitutional amendment has been rejected by SC on the ground of violation of independence of Judiciary which is deemed as part of ‘basic structure’ of constitution.  However there are many issues which have impact on the independence of the judiciary

  • Policy of transfer of Judges and appointment of Chief Justices by transfer.
  • Reasons for transfer of Judges are unsatisfactory. If the reasons do relate to suspected lack of integrity, the Judge must be asked to leave his office.
  • Appointment of Chief Justices by transfer, except in rare cases, has led to not only fractious behaviour between the incumbent Chief Justices, fellow Judges, and the Bar, but also the inability of the incoming Chief Justice to understand the ethos and culture of a High Court.
  • Seeking of financial grants and funds from the Government
  • Financial autonomy must be granted to the judiciary and the judiciary would necessarily subject itself to more than rigorous inbuilt scrutiny particularly in association with the Comptroller and Auditor General of India and place its expenditures and spending on the floor of the House. In fact, the Attorney General in Canada presents the budget on behalf of the Judiciary and there is no reason why the Supreme Court must not authorise an eminent senior lawyer or the Attorney General on his behalf to address Parliament and present its outlay.
  1. Independence of the judiciary has been diminished is the setting up of a large number of Tribunals under the “pretext of specialisation” denuding the Courts of their jurisdiction
  2. Post retirement favours to the Judges who look for opportunities to be associated in some official capacity is an anathema and must be completely forbidden. It is far better for the judiciary to have its own housing schemes, proper life time pension and annuities, so that Judges lead respectable life until the very end

Highlights of the Art 124A

  • The Constitution (99thAmendment) , 2013 amends provisions related to appointment and transfer of judges to the higher judiciary.
  • It establishes a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary.  It empowers Parliament to pass a law providing for the composition, functions and procedures of the JAC.
  • The JAC Bill, 2013 states that the JAC shall comprise: (i) the Chief Justice of India (CJI), (ii) two other senior most judges of the Supreme Court (SC), (iii) the Union Minister for Law and Justice, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.
  • The functions of the JAC include making recommendations for appointments of the CJI, SC judges, Chief Justice and other High Court (HC) judges, and transfer of HC judges.
  • In the system now proposed, the NJAC or the President of India is not bound by the recommendation of the Chief Justices of the High Courts or the Governors. Section 6(4) of the NJAC Bill envisages consultation with senior-most judges and eminent advocates in the High Courts. But their opinion is not binding on the NJAC

Key Issues and Analysis

  • The current method of appointments has been examined by various bodies including the Law Commission and the Parliamentary Standing Committee.  They vary in the role of the executive and judiciary in making appointments of judges.
  • The composition of the JAC has not been included in the Constitution, but has been left for Parliament to decide by law.  This implies that modifying the composition of the JAC would not require a constitutional amendment, but may be altered by a simple majority in Parliament.
  • The Standing Committee examining the JAC Bill has recommended that (i) the JAC be composed of three eminent persons, (ii) the broad parameters for short listing of candidates for HC appointments be laid down in the Bill, and (iii) the centre also consider the setting up of state level appointments commissions comprising the Chief Minister, the Chief Justice of HC and the Leader of Opposition.

Challenges under NJAC act

  • If any two members express disagreement on a candidate, the appointment cannot go through. Thus, in any selection, the unanimity of the three judicial members counts for naught if they cannot carry two out of the remaining three with them. This provision needs to be reconsidered. It will inevitably lead to an impasse, and since the country desperately needs judges, compromises will be made to secure consensus, leading to the entry of compromised candidates.
  • In the all important selection of these members, the Chief Justice can be outvoted by the Prime Minister and the Leader of the Opposition.
  • It would have been in the fitness of things to have provided a clause that no person can be appointed in this category to whom the Chief Justice is opposed, or at least to provide that there should be consensus
  • The judges on the collegium carry tremendous judicial workloads, the Law Minister runs a large ministry, and the eminent persons too will have important activities . None of them can spare much time to attend to the selection of members of the higher judiciary who number close to 950, with over 200 vacancies, and an annual entry of about 100.
  • A proper selection process mandates that every prospective appointee must be carefully evaluated — for ability, merit and above all, integrity. The names should be disclosed and complaints and objections looked into and evaluated. And every candidate must be interviewed. These judges deal with questions of life and death, public policy issues of vast import, corporate and property matters, matrimonial and custody claims. They have more powers than heads of corporations and bureaucracies. And yet, currently, the selecting authority does not even meet them before making the appointment; our senior collegium judges are too busy
  • Commission needs to be backed up by a full-time search committee, composed primarily of retired judges along with other reputed members who will bring the time, the care and the circumspection to this task

Other countries model

United States has the Judiciary Committee of the Senate comprising 18 members; it has the resources to unearth and examine every aspect of the candidate’s record. The United Kingdom has its Judicial Appointments Commission that comprises 15 judicial and lay members, with a staff of 70.

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