National Judicial Appointments Commission Bill: A Critical Analysis

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By Ashish Jacob Mathew, School of Legal Studies, CUSAT.

The Modi government seems to be in a hurry to modify things to appoint judges to the Supreme Court and High Courts. The Parliament has swiftly passed the 121^th Constitutional Amendment to create National Judicial Appointments Commission and another Bill mandating the procedures. The commission consists of the Chief Justice of India, his two senior most colleagues, the Law Minister and two eminent persons. The persons are meant to be chosen by the Prime Minister, the Chief Justice and the Leader of Opposition in the Lok Sabha. The commission is to recommend persons for appointment as Chief justice and other judges of the Supreme Court and the High Courts.

New Bill and its proponents

The bill establishes the new judicial commission have made reassuring statement that judiciary shall remain independent is not a compromise. In the first glimpse, the judges may have the largest single body in the composition in the commission but the devil lies in the procedure where any two members express disagreement on a candidate, the appointment cannot go through. In any selection, the voice of the judicial members can be silenced if they cannot carry two of the remaining three members with them. This provision needs strict reconsideration and more deliberation. It will inevitably lead to impasse, as the country needs judges in the higher judiciary at a very high rate every year and there will be compromise made to secure consensus leading to the entry of compromised candidates. This clause nearly wrecks the whole idea of transparency and independency of the judiciary.

The other serious issue involved is regarding the selection of “two eminent persons”. Due to the former clause, they hold a determinative position. They can block an appointment by themselves, and in disagreement between the judges and the Law Minister, their vote will swing the matter. It can be significantly noted that in selection, the Chief Justice can be outvoted by the Prime Minister and The Leader of Opposition. It would have been in fitness that no person so appointed in the category of to whom Chief Justice opposed or at least to provide that there should be consensus. The Chief Justice has to concur in the selection of the eminent person technically but things may not work out  as conventions. Eminent Lawyer Fali S. Nariman is ready to challenge the bill in the Supreme Court as expressing the importance of consultation of the Chief Justice.

The question arises regarding the system-has it selected the best judges of capacity and independence? The basic truth lies whether the members of the proposed commission are likely to find the required time because with the prevailing new so called revamped model may lead to many chances of compromise. The commission needs full time search committee, composed of primarily retired judges who will bring time, the care and circumspection to this task.

If we look at other countries like United States of America, It has the Judiciary Committee of the Senate comprising 18 members; they inspect and examine every aspect of the candidates record whereas in the United Kingdom, the Judicial Appointment Commission that comprises 15 judicial and lay members with a staff of 70.

At presently, the permanent Search Committee proposed here to aid the National Judicial Appointments Commission has to function in transparent way, involve the bar and other stakeholders and then present its evaluation to the commission. The bill has necessary preamble of transparency, participation and accountability in the Statement of Reasons; creating such a Search Committee is the way to transform the platitude to performance.

The Collegium: Age of Extinction

The new enactments will replace the collegium system which has sustained since 1992. In that year, the Supreme Court had rewrote the constitutional provision which gave the importance to the government in such appointments, creating an obligation of consultation with the Judiciary but not more. The Court in its remarkable interchange of roles, the court ruled that it would consult the government but not require its concurrence. For nearly 22 years, Indian Judiciary has enjoyed power unparalleled the world over. The collegium has been criticized for being opaque and secretive, and blamed for controversial decisions. However, the collegium had secured independence of the judiciary; this achievement should not be lost sight of now. It provided a measure of stability and some comfort to the most respected institution of the country. Later, the collegium insularity negated the principles of transparency and participation ironically, have been embedded into our administrative jurisprudence by the judiciary. The Bar had no role. The collegium started to lack popular backing and thus institutionally came to be challenged. Indeed, If the collegium didn’t alienate itself from it’s natural allies and given lawyers a role in its functioning it may not face extinction today. Governments may challenge a handful of unelected judges, but few politicians want to tangle with numerous members of the vociferous profession.

  The new enacted law may prove to be a more chaotic model by politicizing the judiciary. The Executive playing extremely a crucial role in appointment of judges may create more scope for corruption and harm the very functioning of system.