Let's not be naive about it. The creation of the National Judicial Appointments Commission (NJAC)—as envisaged by the 99th constitutional amendment—is an incursion into the judiciary terrain by the executive. The NJAC, with the mandate to select and transfer judges, replaces the 'collegium system' that eked of shortcomings such as a lack of transparency. However, instead of correcting the defects, the new model seems to give too much say to the executive. This will have many unwanted consequences and primarily violate the independence of the Judiciary—a vital edifice of our democracy. Here's why.
Getting territorial
A backgrounder is mandated first. Article 124 of the Constitution, for instance, originally said every Judge of the Supreme Court shall be appointed by the President "after consultation with such of the Judges of the Supreme Court and of the High Courts…" with the Chief Justice of India (CJI) of being "always" consulted. There have been tussles between the judiciary and the executive since the 1980s over who would hold primacy in the appointment and transfer of judges. Three important judgments matter. The SP Gupta case (1981) declared that the "primacy" of the CJI's recommendation to the President can be refused for "cogent reasons" giving the executive the upper hand. This was overturned in 1993—an era known for 'judicial activism'—by a nine-judge bench decision that gave the CJI the "primal" role. The majority verdict written by Justice J S Verma said the executive cannot have an equal say in the matter. This ushered in the collegium system. By 1998, a nine-judge bench headed by Justice S P Bharucha reinforced the "primacy" of the judiciary. The collegium system—though has no constitutional validity—consisted of the CJI and four other senior judges, who decided on all appointments and transfers.
Still, the collegium system perhaps would not have faced so much flak if the appointments were made in a more transparent manner. The allegations against it have been that they have been mostly closed-door affairs with mostly only senior judges considered—smacking of favouritism— and rarely other eminent lawyers. With limited logistics at their disposals, questions were raised over whether proper due diligence were done initially before sending the names for vetting to the Home Ministry and so forth.
The NJAC, though ostensibly a mechanism to regulate the procedure better, seems to be an effort by the executive to exert its primacy. A five-member constitution bench is currently looking into the law.
Between the lines