By Dushyant Arora:
The provisions of the Constitution (99th Amendment) Act 2014 (hereinafter ‘the amendment act’) and of the National Judicial Appointments Commission Act 2014 (hereinafter ‘the Act’) have been brought into force from April 13, 2015. The amendment act has inter alia inserted Art. 124 A in the Constitution of India establishing the National Judicial Appointments Commission (hereinafter “the commission”). The Commission is a six member body comprising of the Chief Justice of India, two other senior Judges of the Supreme Court next to the Chief Justice of India, the Union Minister in charge of Law and Justice, and two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People.
Eminent jurists stand divided with many of them hailing the aforementioned statutes to be a panacea for all the ills which plagued the Collegium system, while many others opine that these statutes severely compromise the independence of the Judiciary.
Any system of appointment of judges should:
i) Appoint judges in a transparent manner;
ii) Appoint judges on the criteria of merit and integrity;
iii) Should be free from any undue and extraneous influence including but not limited to nepotism etc.
iv) Be in conformity with the doctrine/principle of Separation of Powers.
Does the act achieve these objectives? Popular discourse is plagued with attempts to answer this question by listing the drawbacks or the advantages of the Collegium System. This manner of examining/analysing the act is most illogical because the Collegium System and the system devised by the act as it stands today are not the only possible ways of appointing Judges. This piece attempts to examine whether the act fulfils the aforementioned four objectives.
1. Do the Doctrine of Separation of Powers and the independence of the Judiciary stand compromised by the enactment of the act read with the amendment act?
At the outset it needs to be understood that the independence of an institution or a functionary is determined by several factors including the appointing authority. Some other factors are tenure, allowances/compensation etc., which have sufficient constitutional safeguards and have been left untouched by the Act and the Amendment Act. As far as the change in appointing authority by virtue of the constitution of the act is concerned, unfortunately most attempts at answering the aforementioned question have placed excessive focus on whether Judicial Members have a numerical majority/equality. The devil however lies in the details:
i) Section 10(1) of the NJAC Act states: “10. (1) The Commission shall have the power to specify, by regulations, the procedure for the discharge of its functions.”
Critical factors such as the quorum of the National Judicial Appointments Commission, the parameters of assessing the suitability of judges as well as the criteria for appointing ‘eminent persons’ have been left to the regulations under Section 10 of the Act, which at first glance seem to fall within the domain of the NJAC.
ii) Thereafter, Section 11 of the same act states “(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.”
iii) Section 12(1) mandates that the regulations made by the NJAC must be consistent/comply with the rules made by the Central Government under Section 11. The regulations framed by the NJAC would therefore be subservient to the rules framed by the Central Government.
iv) Section 13 of the Act at first glance seems to stipulate that the aforementioned rules and regulations would be mandatorily placed before both houses of the Parliament which would have the final authority on the matter. Section 13 of the act is as follows:
“13. Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.”
A more detailed perusal of the provision however reveals that the Central Government has completely reserved with itself the power to decide the procedure and ‘regulations’ of the NJAC. It is important to pay attention to the following part of Section 13 of the NJAC Act: “…..however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.”
Ergo, the Central Government has unchecked power to enact rules while Parliament is not in session and practically run NJAC until Parliament meets again at which juncture both houses of the Parliament will theoretically have the option of modifying/removing the rule in question. The Parliament will however have no power to undo the decisions taken by the Central Government while the Parliament was not in session. It is also important to note that there is no stipulation in respect of the nature of majority (whether simple or absolute) that will be required to modify/approve/annul such a rule made by the Central Government.
v) Articles 112 (3) (d) (i) and 202 (2) (d)(iii)of the Constitution of India mandate that the Salaries, allowances and pension payable to the Judges of Supreme Court of India and High Court of each state respectively shall be charged to the Consolidated fund of India and Consolidated fund of each state respectively. The significance of these provisions is that any expenditure charged to the respective consolidated funds cannot be made subject to the votes of the Parliament or the Legislative Assembly as the case may be. Similarly, Article 125(2) and 221 (2) of the Constitution of India mandate that the salaries, allowances and pension payable to the Judges of the Supreme Court and High Courts respectively cannot be varied to the disadvantage of the Judges. These provisions go a long way in securing the independence of the Judges of the High Courts and the Supreme Court of India. However, the salary of the ‘Eminent Persons’ who are proposed to be the members of the Commission have been left at the whim and fancy of the Central Government vide Section 11 (2) (a) of the act. The remunerative benefits of these Eminent Persons should be regulated by the Parliament and provisions analogous to Articles 112 (3) (d) (i), 202 (2) (d)(iii), 125(2) and 221 (2) need to be inserted in the Constitution of India sans which the NJAC can never be an independent body.
2. Is the process of appointment of Judges under the Act more transparent than it was under the Collegium System?
Sadly, no. While the draft rules of the act have not been made public yet, a perusal of the Act reveals that as under the Collegium System, the appointment of judges under the Act will continue to be behind closed doors. There is no provision in the Act which stipulates that the reasons behind the appointment of a judge and/or the rejection of any name under consideration will be made public. This is a critical drawback as any process which is opaque will remain susceptible to extraneous influence and nepotism.
Therefore the act is prima facie violative of the basic structure of the Constitution of India. The appointment of Judges prior to the enactment of the Act was concentrated in the hands of Judges. This Act is not an attempt to check that concentration of power, but to simply shift that concentration of power from the Judiciary to the Executive.
Dushyant Arora is an Advocate practising at the Supreme Court of India and the High Court of Delhi. He tweets at @atti_cus.