National Judicial Appointments Commission – Two Sides of the Coin

National Judicial Appointments Commission

National Judicial Appointments Commission

Independence of the judiciary is the raw nerve. You touch it carelessly or in haste and the consequences will be hard to bear. The fact that the passage of National Judicial Appointments Commission (NJAC) Bill hasn’t gone down well among the several stakeholders of Indian judiciary is made pretty evident in the last few days. The sense of triumph for having replaced the old collegium system for the appointment of judges soon ebbed away with a strong voice of protest emanating from different quarters.

Before we delve further deep into the layers of criticism that the bill has faced, let’s have a dispassionate view of what the bill proposes and what changes it would entail in the system of judicial appointments.

As per the new bill, the Commission will have Chief Justice of India as Chairperson and others members would include the Union Minister of Law and Justice, two senior most Supreme Court Judges, and two eminent personalities (one must be from the SC/ST /minority communities or be a woman). This is where objection has been raised. According to the petition, which questions the new legislation, the composition of the panel accords “unbridled power” to Parliament that might lead to “serious political manipulation.”

Interestingly, the NJAC Bill skipped mentioning whether the “eminent persons” on the commission should have some knowledge of law as a prerequisite.

The main concern expressed in the petition is the risk of judiciary’s voice and opinion being sidelined by the other members of the commission as the NJAC Bill states that the panel “shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation”. What is being considered as a “fatal flaw” in this new law is almost a blatant indifference towards the views of the judges in the selection process.

Only a couple of days back, Abhishek Manu Singhvi pointed out that after 1993 the judicial appointments in India swung to “absolute judicial primacy” from the executive primacy and the new judicial commission will now create an “even balance of judicial and non-judicial representatives. While he was appreciative of this fact, his positive statement came with a caveat – “Institutions are only as good as their operators.” He was clearly not in favour of the proposed idea that non-judicial members will play an important role in denying promotion to the senior-most judge as chief justice in Apex court or High court.

One of the columnists came up with a definite suggestion for NJAC – the body that will be responsible for the appointment and transfer judges to the higher judiciary in India. The panel should evaluate judges on the “merit of judgments they have written, cases they have argued and their linguistic and analytical skills, reputation and integrity.”

Appointment of the judges has now become a double-edged sword for the BJP government. While the collegium system used to be criticized for total lack of transparency and unfair practices (such as denying appointments) the NJAC is also not without its failings. We have to wait for some time to know what course this legislation will chart as Supreme Court is likely to hear the petition tomorrow (25-Aug).