Holding Justice To Ransom: The Bad, The Worse and The Ugly Of The NJAC ACT, 2014

Posted on January 7, 2015 in Politics

By Kiran George:

The National Judicial Appointments Commission Bill, which until recently was in the process of legislative drafting, has been passed by the Parliament, and signed into legal existence by the President of India.

However, what was anticipated to be a transformative step in re-defining the judicial transparency and independence has, in its present form, turned out to be an Ace card played by the Parliament – the executive has now managed to carve itself a nice little comfortable spot in the judicial appointment panel from where it can enjoy the fruits of a rather sinisterly arranged interplay of the Judiciary and the Executive. The inexplicable hurry with which the Bill has been passed in the Parliament, and especially so in the background of lack of public debate on the issue, further stands testament to this.

The Gopal Subramanium controversy was just the tip of the iceberg – it appears that Judiciary vs. Executive standoffs are here to stay, because the government is now officially in the game.

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With Indira Gandhi’s government paving the way for unwarranted super cessions of judges and punitive transfers in the 1970s, the need for a more autonomous system of judicial appointments was realized.

The collegium system was the culmination of the Second Judges Act that led to the final acknowledgement of the necessity of an independent judiciary. The 1993 case was a nine judge bench decision in the Supreme Court Advocates-on-Record Association Vs Union of India , which ushered in the era of the collegium system, and held;

“…..the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge….the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated”.

Despite the noble foresight with which the collegium system first came to be established, two decades later it can be confidently said that the system is not one without faults.

The collegium system of judicial appointments, although one that guarantees great judicial independence, is a closed door process of selection, often driven by considerations other than merit that fail to ensure fairness and impartiality of the system altogether. The grounds for elevation and appointment are known to only those who are part of the collegium, making the process a highly secretive and arbitrary one. Merit is often sidestepped for seniority, and sometimes in favour of caste and regional representation or kith and kin (The Uncle Judges Phenomena).

An undeniable need for reformation of the system by doing away with judicial exclusivity certainly exists. A society governed by Rule of law is one that demands the checks and balances system – the separation of the judiciary from the executive, because justice cannot be administered impartially without the absence of fear or favour from the inherent functioning of the Judiciary.

However, the answer most definitely cannot be the hastily passed NJAC Act, 2014 and The 121st Constitutional Amendment Bill.

The NJAC Act, 2014 empowers the National Judicial Appointments Commission to make recommendations to the President for appointment of judges. The NJAC is to be headed by the Chief Justice of India, and comprises two other senior most judges, along with the Union law minister and two other eminent members to be jointly chosen by the Prime Minister, the Law Minister and the Leader of Opposition, one of which is to belong to the category of Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.

The NJAC bill was proposed as an alternative to the collegium system that would address the latter’s gaping inadequacies and create a more accountable and inclusive process of appointment of judges. And yet, it appears that the NJAC bill, while failing to address the collegium system’s failings, comes with its own set of problems.
Skewed Composition: The Act states that aside from three judges and the law minister, two ‘eminent’ persons are to be chosen by the PM, Law minister and Leader of Opposition to comprise the panel, i.e. three members of the Executive in toto.

However, quite unexpectedly (or maybe not), there has been no mention about whether such person is to be eminent in the field of law or otherwise. Hence, you could have two persons handpicked by the government, coming from a background of anything else but law, who can make politically influenced recommendations exactly in line with the wishes of the Executive – a perfect instance of trespassing boundaries that lay down the separation of powers between the three organs.

Equal Balance Of Power: The judicial members of the Commission have been placed on an equal platform with the other three members, giving the judiciary an equal and not a majority say, despite the obvious inference that regarding appointment of members of the Judiciary, the opinion of the members of the judiciary must attach with it higher significance than that of non members.

CJI Only A Nominal Head: The Chief Justice of India, despite being the Chief Justice and head of the commission, has no casting vote in case of a tie, nor a supreme veto power, while a veto by any two members of the commission including the CJI nullifies any recommendation put before the panel. With the government appointing two persons, how can there be the slightest guarantee of unbiased play? Legitimate recommendations made by judicial members can be easily vetoed out of the run, and voila! you have the Executive’s favourite judge on the bench in yet another scam-ridden case, and members of the Executive before it.

Unjustified Executive Control: In the matter of appointing the next CJI – with the incumbent CJI sitting out the vote, the judicial members of the Commission will become a minority, and the determination of the next CJI practically left to the Executive. Further, the provisions state that the CJI is to be the senior most judge of the Supreme Court provided he is ‘fit’- a convenient throw-in of a rather subjective word to validate any other recommendation made by the Executive through its three pawns within the commission. Further, the provisions can at any point of time be altered by the Parliament to suit its whimsical fancies.

Two Separate Bills: What adds to the suspicion surrounding the Government’s intentions is the fact that two bills have been passed here – the National Judicial Appointment Commission Bill and the 121st Constitutional Amendment Bill. Why weren’t the provisions of the NJAC Bill accommodated within the Amendment Bill itself? It would have resulted in a pre-decided eligibility criteria for appointment of judges, set and carved in stone into the Constitution, thus unchangeable by a simple Parliamentary majority.

The Executive perhaps chose to sidestep scenarios where flexible control does not rest with them – exactly why I earlier asserted that this collegium substitute is a carefully put together farce of a substitute system, aimed at having the judiciary dance to the fiddle of executive caprice.

It is most fortunate that multiple PILs challenging the Acts are lined up to be heard by the Supreme Court. That the government, despite being a major litigant, has an equal say in a matter where it has a rather substantial interest is rather unfortunate. The NJAC’s implementation will result in the subservience of the judiciary to the executive, thus undermining the long term judicial independence and autonomy in the country.