First Among Equals

Let's not be naive about it. The creation of the National Judicial Appointments Commission (NJAC)—as envisaged by the 99^th 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

One of main arguments being made for the NJAC is that there is only one representative of the executive in the form of the Law Minister and the judges hold the majority. The NJAC Act of 2014 says the six members of the Commission would consist of the Chief Justice of India (CJI), its chairperson; two other senior-most Supreme Court judges; the Union Law and Justice Minister; and, two 'eminent' persons. Therefore, there is no breach to the judiciary's independence and it is the judges who will have a say in almost everything. But, is that really true? What about the two 'eminent' persons?

Of course, it's not defined as to what and who qualify as 'eminent'. It could be anyone and from any field with the recent, rather sarcastic jibe by an advocate on whether Baba Ramdev would qualify as an eminent person as the latter had been given a cabinet minister rank by the Haryana government. Let's assume for a moment that the two persons nominated are jurists. Still, there would always be a question on their neutrality; their leaning would be expected to be heavily towards the politicians. This is because their very nomination is decided by a three-member panel consisting of two politicians—the Prime Minister and the Lok Sabha Opposition Leader or the Leader of the largest Opposition Party in the House—and the CJI, who will head the panel.

With the politicians holding the majority here, it's not clear as to what would happen if the CJI objects to any candidature that the other two approve of. Just like how most political parties, forgot their differences, and joined hands to pass the NJAC legislation, one would not be surprised if the two politicos did the same to form a tacit understanding or consensus on the 'eminent' candidates. This would then mean the CJI's presence would be just symbolic and that of a mere spectator. It was the first meeting of this panel that CJI HL Dattu excused himself out of.

The eminent persons, thus nominated, will hold office for three years and will not be eligible for renomination (to the Commission). It's a different thing that the government of the day may hold forth carrots in the form of different commissions or panels where their expertise would be 'keenly sought' after their NJAC stint. So, it's anyone guess where their loyalties could lie.

So, let's get real. In most cases, it is likely that it would be the Law Minister and the two eminent persons being on one side—that is three of them—sort of neutralising the three judges. Further, if two members disagree on a certain appointment, then that name would be struck down. That is, if in a certain scenario, if all the three Judges find a certain High Court Judge to be suitable to be elevated to the Supreme Court, but the Law Minister and even one eminent member think otherwise, they can veto the choice. Imagine the possibility if that High Court Judge had given some tough verdicts against certain politicians or certain governments or certain scams. That is, the message perhaps that could be sent to the entire judiciary is that for career prospects learn "how to manage" the executive.

The NJAC would also be a forum where the Law Minister would be often interacting with the Judges. Is that a healthy trend? Remember, the government is the biggest litigant. So, if there are, say, constant stalemates over appointments, would there be efforts to find a "third way out"? Would that be a healthy precedent?

There could also be greater difficulty for the apex court to hold its authority over the lower courts if the former is seen as weak, especially after NJAC. Already, CJI Dattu is on record ruing over Karnataka High Court dragging its feet over recruitment of judges even after SC directions to all high courts to quickly fill up over 2,000 vacancies.

Finally, the American example is often quoted where the President appoints the judge, and the Senate has to confirm it. So, what's wrong if the executive has a primary role in selecting judges here is what supporters of NJAC ask. But, that is only speaking a half-truth. In the US, once the judges get the Senate nod, they are judges for life. That is, they are completely independent of the executive and the legislature after that point. Can the same be said about our system? Many post-retirement postings for the judges such as heading the National Human Rights Commission and so on are decided by the executive. Recently, former CJI P Sathasivam's appointment as Kerala Governor by the Modi government drew opposition flak, which linked it to his verdict on a case regarding current BJP chief Amit Shah. Certainly, much of the interactions between the executive and judiciary should be minimized with lesser discretion powers on post-retirement postings.

That said, the judiciary needs to do a proper introspection into its working. There are more than 30 million backlog cases and corruption is supposedly at an alarming level at the lowest courts, especially. Still, one wonders why the courts take their summer and winter vacations. While the politicians declare all their assets and incomes, the best we see in the Supreme Court is that the judges have declared them to the CJI: why not make it public? Also, there are many instances where there is a perceptible 'judicial overreach' into the executive's domain on policy-making. Separation of powers does not mean constant confrontation but a harmonious system with mutual respect for each other's domain.

There is no doubt that the judiciary has to do much to cleanse its stables. And, the many vacancies need to be filled up with efficient judges. But, it would be a better idea if the judiciary had a larger say, not the executive.

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