An Article by Miss. Anita Verma, Advocate, BA, LLM
High Court of Himachal Pradesh at Shimla
The process of appointment of judges has been seen as a crucial system to achieve judicial independence and goal of good governance in all legal system of the world. In order to achieve the objective of judicial independence and transparency, the Government of India also enacted a separate full-fledged statute known as The National Judicial Appointment Commission Act, 2014. The purpose of this legislation is to regulate judicial appointments for higher judiciary in India. Under the Act, a statutory body called as the National Judicial Appointment Commission (in short NJAC) had been constituted to appoint judges. The judicial appointment through NJAC had been viewed a significant mode to ensure transparency. It is true that before passing of the National Judicial Appointment Commission Act, 2014 there have been several laws aiming to improve governance in judiciary. However all those laws were not adequate and hence need was felt to enact this specific legislation. The Act has several important provisions to regulate the appointments of judges in higher courts. It prescribes the procedure to appoint and transfer of judges of Supreme Court and High Courts. But before National Judicial Appointment Commission could appoint judges to higher judiciary it was declared unconstitutional by Supreme Court. The practice to appoint judges through collegium system still exists in India.
History behind Enactment of NJAC Act, 2014
The Law Commission, in its 121st report in 1987 had advocated the setting up of a Judicial Commission. In 1987 after the case of S.P. Gupta, the executive came to wield overriding powers in the matter of selecting and appointments of judges. The Commission was unhappy with the situation prevailing at that time. The Law Commission suggested that a National Judicial Appointment Commission be set up. But the Law Commission did not work out its composition and function, so it could not be turned into practical solution. Then again, the Constitution (67th Amendment) Bill, 1990 had proposed the foundation of a National Judicial Appointment Commission for the appointment and transfer of Supreme Court and High Court judges. This Judicial Commission was based on the recommendations in the 121st Law Commission Report. It recommended the establishment of a National Judicial Service Commission.
The proposal for a National Judicial Commission has been resurrected by the Constitution (98th amendment) Bill, 2003 and once again contemplates the formation of a National Judicial Commission. It proposes to introduce a new Chapter consisting of just one Article in the Constitution and also proposes to make consequential amendments to other Articles in the Constitution. The Constitution (120th Amendment) Bill, 2013 has been passed by the Rajya Sabha. The amendment creates a Judicial Appointments Commission. The JAC Bill, 2013 unfortunately has a mathematics that is far from comfortable. The JAC has the Chief Justice of India and two senior most judges. Then there is the Law Minister and two ‘eminent persons,’ bringing the non-judicial component to three out of six members.
National Judicial Appointments Commission was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the Ninety-Nine Constitutional Amendment vide the Constitution (Ninety- Nine Amendment) Act, 2014 passed by the Lok sabha on 13th August 2014 and by Rajya Sabha on 14 Aug. 2014. The National Judicial Appointments Commission would have replaced the Collegium system for the appointment of judges as invoked by the Supreme Court via Judicial Flat by a new system. Finally the bill received the assent of the President Mr. Pranab Mukherjee on 31st December 2014, The National Judicial Appointments Commission Act and the Constitutional Amendment Act came into force from 13 April 2015.
Need and Importance of the NJAC Act
The incidents of corruption are on rise in judiciary. Judges of higher judiciary upon whom lies the responsibility to protects and enforce fundamental rights of citizens of India are not expected to be involves in scams and corruption. Therefore, National Judicial Appointment Commission Act has emerged as a tool to provide fair hearing of citizens. The law ensures effective access to information which in turn shall ensure good governance. It is only in reign of good governance that one can think of enjoying basic human rights. Furthermore, it is said that the system of appointment and transfer of judges through collegiums is opaque where in citizen of India have no right to know about the procedure to appoint judges. Besides judges are showing reluctance in disclosing their assets under the Right to Information Act, 2005 when any information is sought by citizen. The huge income and wealth gained by judges in recent passed has raised question mark on independence of judiciary and its transparent functioning. In order to deal with such problem Government decided to constitute a separate statutory body to appoint and transfer judge so of higher courts. Obviously this has been the reasons, that National Judicial Appointment Commission Act has been recognized as significant method to appoint judges. Many countries across the world have also stressed upon the need to appoint judiciary through independence statutory body and have accordingly made laws in their respective countries.
The National Judicial Appointment Commission Act has been enacted to ensure and regulates judicial appointments. Its purpose is to ensure transparency in judicial appointments. It also aims to remove unnecessary secrecy surrounding the decision making process through collegiums system. It is also widely accepted that India’s National Judicial Appointment Commission Act, has the potential to change the culture and practice to appoint judges through collegiums system.
Provisions of NJAC Act, 2014
It is believed and may be rightly so that National Judicial Appointment Commission has ushered a new era of responsive, responsible governance, transparency, probity and accountability on account of the growing consciousness of the people. The whole Act is in light of democratic approach of participating Government i.e. The Act gives us the right to ask the Governments and judges of Supreme Court and High Court for information that can expose inaction, arbitrariness and corruption, and address grievances. The following are some of thenoteworthy provisions of the Act. The objective of the Act clearly aims to promote transparency and accountability in judicial appointments for Supreme Court and High Courts. The Act will not only regulate the appointments but would also regulate the transfer of judges.
Composition of NJAC
According to this Amendment Act, there shall be a Commission known as the National Judicial Appointments Commission. The Commission shall consist of six persons which include Chief Justice of India as chairperson, the Union Minister of Law and Justice as member ex-offcio, two senior most judges of the Supreme Court next to CJI as member ex-offcio and two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha or where there is no such leader of opposition, then, the leader of the single largest opposition party in the House of the people as members. One of the eminent persons shall be from amongst the persons belonging to the Schedule Caste, the Schedule Tribes, Other Backward Classes, minorities or women. The eminent persons shall be nominated for a period of three years. They shall not be eligible for re-nomination.
Modus to Appoint Supreme Court Judges
The Act prescribes the procedure to appoint Supreme Court judges. The Act has laid down a transparent procedure to select judges of Supreme Court. The Act provides that the Commission shall recommend for appointment the senior most judge of the Supreme Court as Chief justice of India If he is considered fit to hold the office. The Commission shall on the basis of ability, merit and any other criteria of suitability recommend the name for appointment as a Judge of the Supreme Court from amongst persons who are eligible to be appointed under the Constitution.
Procedure for Selection of Judge of High Court
The Commission shall recommend for appointment a judge of High Court to be a judge of the High Court on the basis of inter se seniority of High Court judges and ability, merit and any other criteria of suitability as may be specified by regulations. The Commission shall seek nomination from the Chief Justice of the concerned High Court for the purpose of recommending for appointment a person to be a Judge of that High Court.
Power of President to Require reconsideration
Under this Act, the President shall, on the recommendations made by the Commission, appoint the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or the Judge of a High Court. Provided that the President may, if considers necessary, require the Commission to reconsider, either generally or otherwise, the recommendation made by it Powers and Functions of the Commission
Procedure to Transfer Judges Power of President to Require reconsideration
Under this Act, the President shall, on the recommendations made by the Commission, appoint the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or the Judge of a High Court. Provided that the President may, if considers necessary, require the Commission to reconsider, either generally or otherwise, the recommendation made by it. The Act further provides that if the Commission makes a recommendation after reconsideration in accordance with the provisions contained in sections 5 or 6, the President shall make the appointment accordingly.
Powers and Functions of the Commission
Under the Constitution (Ninety-Ninth) Amendment Act, the Commission has been empowered to exercise and performs multiple functions. It shall be the duty of the National Judicial Appointments Commission to(i) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts (ii) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court and (iii) ensure that the person recommended is of ability and integrity.
Procedure to Transfer Judges
The National Judicial Appointments Commission shall recommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such transfer. The National Judicial Appointments Commission shall recommend for transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court, and for this purpose, specify, by regulations, the procedure for such transfer.
Critical Appraisal of NJAC Act
The National Judicial Appointment Commission Act viewed as significant tool to ensure judicial independence. This law could change, the ways, of governance in our country. It is needless to mention here that one of the ways by which judicial independence can be guarded and protected is transparent and fair system of selecting and transferring judges. The transparency can make the process of appointment of judges democratic in nature. In fact, this was the main reason for the establishment of the National Judicial Appointment Commission. A watchful analysis of the provisions of the Act, exhibits, that it has several salutary features. But no law is free from imperfections. The NJAC Act had also some deficiencies and flaws. The following were some of the major defects brought into light through several studies.
Threat to basic structure of Indian Constitution
The Supreme Court bench had held that the clauses in the amendments are inadequate to preserve the primacy of the judiciary and the inclusion of the Law Minister in the National Judicial Appointment Commission has impinged on both the independence of judiciary and the doctrine of separation of powers, which are basic features of the constitution. It also asserted that the better functioning of the judiciary must not be secured at the expense of its independence. By striking down the Constitutional amendment the Supreme Court has sought to ensure that the executive does not have a say in appointment of the higher judiciary.
Arbitrary and vague Veto Power
The new NJAC Act also gives veto power to the members of the Commission. Under National Judicial Appointment Commission act, the executive sought to bring two eminent persons into the voting process, with veto powers. The bench said that this will promote the “spoils system”. As there is no particular criterion to decide who is an eminent person, the eminent persons may be unspecialized people without judicial experience.
Overlapping of Rule Making Powers
The National Judicial Appointment Commission Act gives the rule making power to the Central Government and gives rule making power to the National Judicial Appointment Commission. Both, the Central Government and the National Judicial Appointment Commission can make rules and regulations for the working of the Commission. But, what would happen if there is a conflict between the rules made by Central Government and National Judicial Appointment Commission? Whose rule will prevail in such a situation? There are no answers to these questions in both the Acts and in any delegated legislation.
NJAC exempted from RTI
One of the major motives of bringing the Commission system into existence by replacing the Collegium system is to bring transparency in the appointment process of the Judges. Transparency in the National Judicial Appointment Commission can be achieved by giving the right to Judges who are rejected to know the grounds on which their rejection took place and such practice will eliminate the chances of corruption and biasness. It is also necessary to give such right to citizens, because they should also know the grounds on which judges are rejected or appointed because the judgements which these Judges are going to give in near future might also affect them directly or indirectly. Such an arrangement will also bring the credibility into the Commission. But, the big question is whether the purposed Commission stands on this test? And the answer is NO. The reason is that, it is nowhere mentioned in the Acts that the National Judicial Appointment Commission will come under the Right to Information Act, 2005.
Unequal balance of Power
The judicial members of the Commission have been placed on an equal platform with the other three members, giving the judiciary an equal and not a majority say, despite the obvious inference that regarding appointment of members of the Judiciary, the opinion of the members of the judiciary must attach with it higher significance than that of non members.
CJI Only a Nominal Head
The Chief Justice of India, despite being the Chief Justice and head of the Commission, has no casting vote in case of a tie, nor a supreme veto power, while a veto by any two members of the Commission including the Chief Justice of India nullifies any recommendation put before the panel. With the Government appointing two persons, how can there be the slightest guarantee of unbiased play? Legitimate recommendations made by judicial members can be easily vetoed out of the run, and voila! You have the Executive’s favorite judge on the bench in yet another scam-ridden case, and members of the Executive before it.
Unjustified Executive Control
In the matter of appointing the next Chief Justice of India – with the incumbent Chief Justice of India sitting out the vote, the judicial members of the Commission will become a minority, and the determination of the next Chief Justice of India practically left to the Executive. Further, the provisions state that the Chief Justice of India is to be the senior most judge of the Supreme Court provided he is ‘fit’- a convenient throw-in of a rather subjective word to validate any other recommendation made by the Executive through its three pawns within the commission. Further, the provisions can at any point of time be altered by the Parliament to suit its whimsical fancies.
Selection Procedure not codified under the Act
The key elements of the selection process are neither entrenched in the composition of the Constitutional Amendment Act nor in the National Judicial Appointment Commission Act or in any other delegated legislation. The Constitutional Amendment Act gives constitutional status to the Commission but the procedure for the appointment of judges might be regulated by the Parliament. If Central Government wants to create an independent, transparent and accountable appointment Commission, than it should also make efforts to free the same from the holds of executive and legislature. The independence of such a Commission cannot be guaranteed if it is not able to formulate rules and regulations for its smooth functioning. From the present structure of the Act, it is clear That the Parliament may interfere the vital functioning of the Commission by passing an ordinary law. The National Judicial Appointment Commission Act is very loose and huge space is given to the Parliament to formulate regulations for the appointment of the Judges. If one carefully goes through the wording of the National Judicial Appointment Commission Act, he/she will discover that this Act is handicapped to a certain extent with regards to maintaining the independence of the judiciary. Again, it will be the Parliament to judge the, ‘any other criteria’ for the appointment of the judges.
Violation of Basic Structure Norm
Independence of judiciary has been declared as a basic structure of Indian Constitution. It cannot be disturbed by giving upper hand to executive and government in matter of appointment and transfer of judges of higher judiciary. The Constitution of India has a provision under which judiciary shall be kept separate from executive interference. The same constitutional provision has been upheld further by judiciary itself by declaring it as a basic structure of Indian Constitution. By introducing the NJAC, it is clearly shown that legislative wanted the intervention in the system of the judiciary. The executive’s interference in the appointment of judges would impede judicial independence.
An independent judiciary is essential to guard citizens of India against governments’ excesses. The Constitution establishes National Judicial Appointments Commission to regulate judicial appointments. The entire purpose behind this Act was to make selection procedure transparent and fair which earlier were made through collegiums system. But few Supreme Court judges and CJI showed reluctance to appoint judges through NJAC when government of India intended to select judges through new mode. After few months of the enactment of the NJAC Act, 2014, its Constitutional validity was questioned before the Supreme Court. The Supreme Court declared this NJAC Act unconstitutional on the ground that the appointment of judges through NJAC would undermines judicial independence which has been declared as the basic structure of Indian Constitution in a case by Indian judiciary itself. The move of striking down of the Act has been criticized by various stakeholders including media persons, RTI activists, NGOs, governments and constitutional experts. The striking down of the Act and the continuous appointment of judges through collegium system has raised a lot of questions unanswered. The decision of the Supreme Court whether would prove boon or bane for Indian democracy, one has no option except to wait for few years to come.