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The National Judicial Appointments Commission Bill, 2014.

The NJAC Bill, 2014 seeks to set up a Commission for the appointment of SC judges and to
give it a Constitutional status. Before getting a brief overview of the Bill, it is imperative to
know the existing system of judicial appointments in our country i.e. the collegiums system.
Very briefly it is the hegemony of the Chief Justice of India and the senior most judges who
the CJI consults. The Presidents opinion is largely redundant.
One of the reasons why the Bill was proposed was because the existing appointment process
lacked transparency and raised questions of partisanship, arbitrariness and corruption. There
is no saying why someone is being appointed, and more importantly, why someone deserving
is being overlooked there is no criterion to judge the decision of the CJI upon, even under
the Constitution. Most importantly, there is no judicial accountability as the CJI cannot be
questioned about his appointments. In a recent newspaper article, a retired SC judge criticised
the NJAC Bill, 2014 on the grounds that it was against independence of judiciary. But in our
democratic set-up, what is more important is for our institutions to be transparent and
accountable. The real question that now needs to be looked into is whether the NJAC Bill,
2014 and the related 121st Constitutional Amendment Bill, 2014 are designed well enough to
be able to achieve this.
The first noticeable change that the Bill is trying to bring about is to rest the power of
appointments with the Executive. Secondly, it is changing the removal process of SC judges.
Currently, they can only be removed in a like manner as the President or impeachment in
other words. So, the Bill is compromising security of tenure of judges. These two reforms
form the crux of the debate on the two Bills, the threat to independence of judiciary and the
potential for executive excesses.
As for the Commission, its job would be to recommend candidates for the appointment of
CJI, Chief Justices of High Courts as well as other judges of the SC and High Courts. The
Bill gives the Parliament power to make rules with regard to the appointment process and the
Commission discretionary power to lay down rules and regulations.
Very interestingly, 2 of the members of the Commission of the Bill are to be eminent
persons. Whether a person is eminent or not is entirely the prerogative decision of the 3
member Committee consisting of the PM, Leader of Opposition and CJI. This process again
is not very democratic as there is no qualifications listed out to determine who may be an
eminent person. A similar argument can be made for the rule regarding the appointment as
well Rules regarding the appointment to the office of a Judge is not a mere procedural or
administrative aspect but a matter of public policy. That is why there must be always be
eligibility and suitability criterion for such appointments.
Another critical aspect that is less debated upon is the Constitutionality of the passage of the
2 Bills themselves. The 121st Constitutional Amendment Bill requires ratification by one half
of the State legislatures before the President can give his assent to it. The NJAC Bill could
only be introduced on the basis of the Constitutional Amendment. But the NJAC was passed
by both Houses before the ratification process could be completed. This raises doubts as to
the constitutionality of the passage of the NJAC Bill.

Not only is the Bill unconstitutional, but it also makes the judiciary a puppet in the hands of
the executive and the Parliament. The Bills main errors lie in the composition and numbers
of the Judicial Appointments Commission and the selection criterion for appointments of
judges.
The composition in my opinion, must be heavily tilted towards the judicial fraternity, but not
like the collegiums model. The number must be expanded to include diversity of opinion
unlike in the Bill where it is largely executive members or members selected by the executive
itself. As for the criterion, the Bill cannot use terms such as eminent, of merit, etc as they
are too vague. Shouldnt it instead be ability to make timely judgments, good legal writing
skill and so on?
In conclusion, it is obvious that the collegiums system is inappropriate for a democratic
society, but the NJAC Bill, 2014 is not necessarily the solution for that problem.