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august 23, 2014

Economic & Political Weekly EPW august 23, 2014 vol xlix no 34
No Cure for the Malaise
A law passed in haste will replace the awed judicial collegium with yet another awed system.
arliaments approval of the Constitution (121st Amendment)
Bill, 2014 and the National Judicial Appointments Com-
mission (NJAC) Bill, 2014 raises more questions than an-
swers about the process of appointments to the higher judiciary.
The combined effect of the two bills is to establish a NJAC which
will be responsible for appointment of judges to the Supreme Court
and high courts as well as transfer of judges between high courts.
The esta blishment of the NJAC marks the end of the judicial colle-
gium, a committee comprising the Chief Justice of India (CJI) and
senior Supreme Court judges. The collegium, hitherto responsible
for appointments and transfers, was widely felt to have lost its le-
gitimacy as a credible and impartial appointment authority, given
the absolute secrecy that characterised its functioning. However
the reform bills pay scant attention to detail, make illusory refer-
ences to transparency and were passed in undue haste by Parlia-
ment without any meaningful scrutiny or notable debates.
The most crucial issue surrounding the NJAC concerns its
composition. The suggested composition with the CJI and two
senior Supreme Court judges, the union minister of law and
justice and two eminent persons selected by a committee
comprising the CJI, the prime minister and the leader of the
opposition/single largest opposition party in the Lok Sabha, is
problematic in principle and practice. In principle, there is a
strong claim that not having a preponderance of judges in a
commission to appoint judges is in violation of the independ-
ence of the judiciary. That judicial preponderance is essential in
a judicial appointments mechanism was held by the Supreme
Court itself in The Second Judges Case which established the
collegium system. This principled view is backed by experience
prior to, and during, the Emergency when executive-led appoint-
ments and transfers led to a well-founded apprehension of a
subservient judiciary that failed to perform its constitutionally
mandated role of a counter-majoritarian institution. While, no
doubt, ne judges with unquestionable integrity too were
appointed in that period, the institutional independence of the
judiciary was indubitably compromised. While the NJAC does
not envisage a return to executive primacy, it is a step in that
direction and must be viewed with scepticism.
This is especially so in appointments to the ofce of the CJI.
For such appointments, the two senior-most judges on the NJAC
have to recuse themselves, since they will be in consideration
for appointment as CJI. This will mean the CJI is the only judicial
member for this particular selection. Further, for such selection,
the NJAC will also have the discretion to assess whether the can-
didate is t to hold the ofce. While tness to hold the ofce
might be a relevant criterion per se, it requires further explication
of its meaning does this refer to physical tness or ability to
function as CJI? If the latter, then what are these qualities which
are distinct from those possessed by a judge? On what basis can
such qualities be assessed without a formal application and
interview? The bills are conspicuously silent on these aspects.
This is symptomatic of a larger concern with the bills an
inadequate safeguarding of transparency, particularly in the
details of the process. This is surprising, since the most egregious
failing of the collegium system was the secrecy of its function-
ing and the lack of reasons for its decisions. One would have
expected rectication of this deciency to be the raison dtre of
these reforms. On the contrary, the shortlisting of candidates,
their nal selection, and the exercise of a veto in respect of cer-
tain candidatures can all be done by the NJAC in secret without
any reasons being provided. Safeguards to ensure that persons
are appointed on the basis of their ability rather than their con-
nections are thus largely absent. There is no guarantee that the
spectre of nepotism and trade-offs that characterised several
collegium appointments will not be replicated in the NJAC.
In light of these deciencies, a constitutional challenge to the
NJAC is inevitable in the Supreme Court. Irrespective of whether
the challenge is heard by the Court now, or after 15 states have
ratied the Constitution amendment making it law, the case will
be epochal in the judicial history of India. Were it a law passed after
appropriate consultation, in an atmosphere of mutual respect
and trust between the judiciary and executive, such a challenge
would have been primarily of interest to lawyers. But as far as
the separation of powers in Indias constitutional framework is
concerned, we live in testing times. The Narendra Modi govern-
ment is the rst in over two decades to command an absolute
majority in the Lok Sabha. The judiciary, having cited governance
decits to justify expansive and activist interpretations of the
Constitution in this time, might need to closely introspect about
its interpretive approach and wider public role. While a commis-
sion to govern judicial appointments is vital, in the prevalent po-
litical atmosphere with the bills as they stand, this particular it-
eration of the commission might well prove to be a remedy that
is worse than, or at least as bad as the malaise it seeks to cure.