National Judicial Appointments Commission; A Critique

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An assessment of the new law introduced to appoint judges argues that it will make the judiciary subservient to the executive and thus throws a fundamental challenge to the Constitution and Indian democracy. The long-pending demands for transparency and accountability of judges and for making the judiciary more representative have been forgotten in these new bills.
Indira Jaising (indirajaising@gmail.com) is a senior lawyer of the Supreme Court and a former Additional Solicitor General of India.
[This article was written and edited prior to the Supreme Court’s refusal to hear the petitions against the two bills discussed in here – ed.]
The National Judicial Appointments Commission (NJAC) Bill, 2014 and The Constitution (One Hundred and Twenty First Amendment) Bill, 2014 were introduced in the Lok Sabha on 11 August 2014. Even before the ink is dry on the two bills, petitions have been filed in the Supreme Court challenging their constitutionality on the ground that they have violated the basic structure of the Constitution. The petition filed by the Supreme Court ­Advocates-on-Record Association states that Parliament does not have the power to change the basic structure of the Constitution which it has done and hence the government should be restrained from sending the amendment bill to the states for ratification. The NJAC Bill is also challenged on the ground that when it was introduced, Article 1241 and Article 217 were in full force and effect and no legislation can go contrary to the Constitution. The two bills are therefore a stillborn law, null and void.
The challenge is a rather unusual one, inasmuch as for the first time a bill is challenged before it has actually become law. There was a similar challenge to the bill creating Telangana before it became a law and the Supreme Court rejected the challenge on the ground that only a law could be challenged and not a bill.
We need to see how this drama
unfolds in the Court, but for now, the National Democratic Alliance (NDA) government has been seriously challenged in the only institution that can entertain such a challenge.
Ironically, during the United Progre­ssive Alliance (UPA) regime, it was Arun Jaitley who made the point that no law could be made altering Article 124 of the Constitution without a constitutional am­e­ndment first being made but in
its haste to set up a commission, the
NDA see­ms to have forgotten this basic proposition.
The petition challenging the constitutional amendment states that the two bills destroy the separation of powers and undermine the independence of the judiciary. In plain language, this means that the executive can determine the composition of the judiciary, making it an institution appointed by the executive. Given that in our system, laws made by the executive can be challenged in front of the judiciary, it is imperative that judges are not dependent on the ­executive for their appointment.
As of today, since the Constitution Amendment Bill has not been ratified by the requisite states, the Collegium continues to be the appointing body to fill up vacancies that occur in the post of judges in the Supreme Court and in the high courts. If the two bills become law, the prime minister will have appointed 21 judges of the Supreme Court by 2019, when the next general election is due.
It is obvious that under the new dispensation, the government can veto the
appointment of judges they consider unfriendly to them. It is in these
circumstances that the challenge is not only important but fundamental to
our democracy.
The Background
Since 1950, judges have been appointed by the government in “consultation” with the Chief Justice of India (CJI). For the first two decades, there was a near consensus between the government of the day and the CJI.
In 1981 the question arose whether “Consultation” referred to in Articles 124(2) and 217(1) with the CJI meant “concurrence” in which case the recommendations of the judiciary would be binding on the government. In the S P Gupta case deci­ded in 1981, the Court held by a majority that the recommendations of the CJI were not binding on the government. Once this decision was rendered the government obtained a licence to disregard the recommendations of the judi­ciary. While this was a ­literal interpretation of the word “consultation”, it had devastating political consequences. It appears the recomme­n­dation made by the CJI were not accepted as an invari­able rule; change was on the cards.
The prime initiators for change in the method of appointment of judges have always been the lawyers. In hindsight it seems almost logical since it is they who end up as chief justices of the high courts and of the Supreme Court. Judges of these courts are invariably sons of former judges or sons of lawyers practising at the bar. The debate on who should appoint judges has never really being thrown open to the public and we as a country do not have an articulated position on this issue. In Court we are confronted with a binary position, either independence of the judiciary or executive control. This process of reasoning
is inherent to the legal method and
no nuances are allowed to emerge nor options considered.
In 1993, once again, the issue was ­taken to the Supreme Court and the judgment in the S P Gupta case was ­overruled.2
This time a bench of nine judges held that a collegiate opinion of a collective of judges is binding on the government. The majority gave the following conclusions regarding appointments:
(1) All the constitutional functionaries must perform this duty collectively with a view to reach an agreed decision so that the occasion of primacy does not arise.
(2) In case of Supreme Court the proposal is to be initiated by the CJI and in the case of a high court by the chief justice of that high court.
(3) In the event of conflict of opinion the view of the CJI has primacy.
(4) No appointment of any judge to the ­Supreme Court or any high court can be made unless it is in conformity with the opinion of the CJI.
(5) In exceptional cases, for stated strong and cogent reasons, disclosed to the CJI, indicating that the recommendation is not suitable for appointment, the appointment recommended by the CJI may not be made. But in case the CJI reiterates his recommendation then, the appointment should be made in accordance with his recommendation.
(6) The senior-most judge of the Supreme Court should be appointed as CJI, if considered fit to hold the office.
The judgment established the primacy of the judiciary in the matter of making appointments.
It appears that the collective of judges was not able to take decisions in the ­spirit of a collegium and this led to a presidential reference under Article 143 to the Supreme Court for an advisory opinion on the appointment of judges, the method relating to the consultation between the CJI and his brother judges in the matter of appointment of judges, and the relevance of seniority in appointing the chief justice and the other judges.
The Supreme Court rendered an opinion reiterating that the CJI has plenary powers in the consultative process. The nine judges bench opined;
(1) The opinion of the CJI, having primacy in the consultative process and reflecting the opinion of judiciary, has to be formed on the basis of consultation with the collegium, comprising of the CJI and the four senior most Supreme Court judges. The judge, who is to succeed the CJI should also be included, if he is not one of the four senior most judges. Their views should be in writing.
(2) Views of the senior most judges of the ­Supreme Court, who hail from the high courts where the person to be recommended are functioning as judges, if not part of the collegium, must be ­obtained in writing.
(3) The recommendation of the collegium along with the views of its members and that of the senior most judges of the Supreme Court who hail from the high court where the persons to be recommended are functioning as judges should be conveyed by the CJI to the Government of India.
(4) The substance of the views of the others consulted by the Chief Justice of India or on his behalf, particularly those of non-judges (members of the Bar). Should be stated in the memorandum and be conveyed to the Government of India.
(5) Normally, the collegium should make its recommendation on the basis of consensus but in case of difference of opinion no one should be appointed, if the CJI dissents.
(6) If two or more members of the collegium dissent, the CJI should not persist with the recommendation.
(7) In case of a non-appointment of the person recommended, the materials and information conveyed by the Government of India, must be placed before the original collegium or the reconstituted one, if so, to consider whether the recommendation should be withdrawn or reiterated. It is only if it unanimously reiterated that the appointment must be made.
(8) The CJI may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto, which, if made, be considered by the collegium before withdrawing or reiterating the recommendation.
It is worthy of mention that the previous NDA government was in power at that time when the reference was made and the then Attorney General for India appe­ared in the case and argued that the primacy of the chief justice over the execution must be maintained. This is where the law stood when these two bills were introduced.
Present Context of NJAC
Much water has flown under the bridge since 1998. The country has seen several political changes. Our understanding of the meaning and content of democracy has evolved. One such development has been the introduction of the Right to ­Information Act. Although as of today, this Act does not apply to the judiciary, yet it has contributed to expectations being raised among the general public that there will be transparency in the functioning of the judiciary. It is also very clear that in the last few decades, that the functions of the judges have vastly expanded, with significant impact on government and citizens alike. While on the one hand freedom of information and good governance became the major demands of the 21st century, the functioning of the judiciary continued to be shrouded in mystery and secrecy. The rule of seniority ensured that judges could rise up the ladder with no special attention being paid to merit. Moreover, the appointment of a judge could be manipulated to ensure that a particular person becomes CJI, simply by being ­appointed judge as a younger person.
Women, scheduled castes, scheduled tribes and religious minorities continued to be, by and large, excluded from the judiciary. In 1991 this author made the first-ever demand for an investigation into allegations of corruption against a sitting judge of the Supreme Court in recent times and the then CJI publicly announced that since there was prima facie material available against him, no work will be assigned to him. These, and other ­related developments, led to the judiciary coming under the public gaze and questions started being raised about how and why certain
persons were ­appointed to the courts and others excluded.
Together these factors led to a growing popular demand for a change in the manner and method of the appointment of judges; and this demand could not any longer be ignored.
The UPA government introduced a bill in 2013 for the appointment of a judicial commission. It is unclear whether this bill was introduced in response to the popular demand for transparency or whether it was introduced as the government perceived the judiciary to be ­
overstepping its limits. What is clear, however, is that there was no provision for transparency in that bill, nor any provision for public participation in being able to give inputs on who could be fit for ­appointment. The bills lapsed with the dissolution of the 15th Lok Sabha earlier this year.
It is in these circumstances that the NDA has introduced the current bills. In popular perception the bill could have been introduced due to this long-standing demand and it would not be difficult to convince the public at large that the existing system needed change. Union Law Minister Ravi Shankar Prasad never tires of stating that the bills fulfil a 24-year-old demand. This contention is far from true. The long-standing demand has been for transparency and public participation, greater representation for women, minorities, scheduled castes and scheduled tribes. The bills
introduced in Parliament do not address any of these.
Those of us who supported the demand for change find ourselves unable to support the NJAC Bill in its current form. The Commission is composed of the CJI, two senior-most judges of the Supreme Court, the law minister and two eminent persons, to be selected by a selection committee consisting of the prime minister, the CJI, leader of the
opposition in the Lok Sabha or where no leader of opposition, the leader of the largest single opposition party.
Grave Infirmities
There is no definition of who is an eminent person. If past experience is anything to go by, these could be lawyers or former judges. It is the function of this commission to recommend judges for appointment to the Supreme Court and the high courts.
The bill amending Section 124B of the Constitution states, among other things, that one of the criteria for being recommended as a judge is that a person must be of “ability and integrity”. There is no system in place for judging ability and the bill does not define it either.
Most importantly, if any two members of the Commission do not agree with a particular recommendation, the person cannot be appointed. Section 5 of the bill states, “Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation”.
This provision effectively gives to the executive a veto over the nomination made by the judiciary, as the law minister and one of the eminent persons can stop the appointment of a judge. The criteria for appointment of a judge is ability, merit, or any other criteria specified by regulations. Notoriously, it is the criteria of “merit” that has always kept out underprivileged sections of society, with no godfather, from being appointed to public service. It is only a provision for affirmative action that can correct this imbalance of representation in public service. There is no provision in the bill nor a statement of intent, mandating
the Commission to ensure due representation of minorities, women, the scheduled castes and scheduled tribes in the judiciary.
The bill gives the Commission the power to supersede the senior-most judge for appointment as the chief justice on grounds of lack of merit or ability. In the absence of any methodology for judging ability and merit, this provision could end up packing the judiciary with
“frie­ndly” judges. Integrity is a necessary requirement for a judge, yet there in no binding code of conduct for a judge, nor a complaints procedure in place. The UPA had introduced a Judicial Standards and Accountability Bill, but the current NDA government has made no attempt to introduce any such bill.
Section 7 of the bill, as introduced in Parliament required the appointment to be made only if the recommendation was unanimous. This meant that the
law minister alone could hold up an ­appointment. The Congress objected to this provision after which it was dropped from the bill.
The provisions of the NJAC Bill, 2014 should leave no one in doubt that there is every possibility of the government appointing friendly judges destroying the independence of the judiciary. By 2019 we may well have a Supreme Court friendly to the ruling party and whose judges have been dependent on the ­executive for their appointment.
Given the majority the ruling Bhara­tiya Janata Party enjoys in Parliament effective opposition to the laws and policies of the government will come primarily from outside Parliament, i e, from civil society.
Seeds of Authoritarianism
The judiciary which is supposed to be independent of the executive is the only institution to which we can turn to question anti-people laws. To give just one example, the move to amend labour laws to take factories with less than 40 workers out of the ambit of the Factories Act will deprive workers there of health and safety benefits and is bound to be chall­enged. At such times, it is critical to have judges who think independently. If the very independence of the judiciary is compromised we will be living under nothing short of a one party
authoritarian State.
It is for this reason that even fellow travellers of the NDA government have not only opposed these bills in strong terms but also challenged them in Court. Those of us who supported the idea of an independent Commission, find ourselves in a bind, not wanting a return to the collegium and not wanting these bills.
The current controversy has serious consequences for what we understand to be constitutional governance and the basic features of the Constitution. There can hardly be any doubt that regardless of which government is in power, the ­judiciary has to be representative of
the aspirations of the people of this country, rather than of the ideology of the ruling party.
Perhaps the issue itself – independence versus executive control – is falsely posed. There are other issues which are of great moment. What does one understand by “independence” of the judiciary; does it mean that the person has no political affiliations;, how are these to be known, by party membership or ideo­logy? But then, how does one discover the ideology of the judge? If a judge is being appointed from the high court, are his/her judgments scrutinised for commitment to constitutional values? What is the process by which they are appointed; who appoints them and is there transparency in the matter of appointments? These critical questions remain unanswered. The even more important, the question of the accountability of judges remains unaddressed.
What was needed was public participation in the matter of appointment of judges and equal opportunity to become a judge. The system of nominations by the executive or the judiciary must be put an end to, instead, those who consider themselves eligible must be permitted to send an expression of interest making it possible for that person’s antecedents to be evaluated. If the government of the day wanted to have the last word in the appointment of judges, they could have chosen the path of confirmation by Parliament with a full debate on the ideology of the nominee in Parliament. Only such a method would give legitimacy to political appointments. If on the other hand, the appointments are to be made by the judiciary we cannot go back to the collegium, we need transparency and equal opportunity.
The two bills in question fall between the cracks, perhaps consciously, making the appointment process political without the necessary safeguard of having the nominee publicly articulate his/her views on all constitutional issues. What is even more dangerous is that this
is done without any means of holding judges ­accountable.
What happens in the Supreme Court will change the course of the history of the nation.
Notes
1  Article 124Establishment and constitution of Supreme Court:
   (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other judges.
   (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under the hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposes and shall hold office until he attains the age of 65 years:
   Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
   Provided further that –
   (a) a Judge may, by writing under his hand addressed to the President, resign his office;
   a Judge may be removed from his office in the manner provided in clause (4).
2  SC Advocates-on-Record Association vs Union of India, (1993) 4 SCC 441: AIR 1994 SC 268-9 Judges.
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