4 Sept 2014

National Judicial Appointment Commission Bill (NJAC), 2014 and Indian Judicial System : An Overview !!

'Change' is one of the most important characteristic of democracy as it is for our lives. Someone has rightly said "It is only the change which remains constant". These changes bring new energy with time but becomes obsolete over certain period and finally it has to die to accommodate new change. The existence of democracy is no different than existence of human being. Both need to keep responding to the changes taking place.

After the new govt. came to power, many changes have been taking place. Judicial appointments have been one of the most controversial and crucial component of Indian democracy. The govt. has tried to tie the knot with it. In this article we form our opinion about the changes in judicial appointment but we shall look for some facts first.
Constitutional provisions for Judicial appointment

Supreme Court: Article 124 of the Constitution provides that the President shall appoint judges to the Supreme Court 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 purpose. And, where the appointment is of a judge other than the Chief Justice of India, the President is mandatorily required to consult the Chief Justice. 

High Court: Article 217 provides that the President shall appoint judges to the High Courts after consultation with the Chief Justice of India, the Governor of the State, and in case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned.

Evolution of Collegium System in its current form

1. First Judges Case: In Union of India v. Sankal Chand Himatlal Sheth[(1977) SCC (4) 193], the Supreme Court found that the word “consultation” did not mean “concurrence”. The Court held that the opinion of the Chief Justice in making transfers was not binding on the executive, although a departure from his or her opinion could be made in exceptional circumstances. This meaning of consultation was affirmed for the appointment process in the First Judges Case (S.P. Gupta v. Union of India, 1981 Supp (1) SCC 87).

2. Second Judge Case: The Supreme Court dramatically altered the position in the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, (1993) (4) SCC 441). It ruled that the word “consultation” in Articles 124 and 217 denoted “concurrence,” and that primacy in making judicial appointments is vested with the Chief Justice.

3. Third Judge Case:  In the Third Judges Case (In re Presidential Reference, (1998) 7 SCC 739), it was held that the ultimate authority to make appointments to the Supreme Court lay with a collegium of judges comprising the Chief Justice and his or her four senior-most colleagues.

Thus in the Second and Third Judges cases, the Supreme Court virtually appropriated unto itself the power to appoint judges. We will have to recognise the fact that the change in the attitude of the Supreme Court was in response to the attempts made by the executive to muzzle the judiciary in the Emergency and the post-Emergency era and save the Independence of Judiciary

Indian Parliament
Current process of selection(From 1993 till the new law comes into effect)

The Chief Justice of India initiates a consultation with senior advocates and fellow judges of both the bar and the bench by taking them in confidence and a long list of possible candidates for elevation is prepared. Based on this list the Chief Justice then invites the candidates to determine their willingness to be considered. If the candidates are willing then they are required to furnish details about themselves, such as their contributions to the law especially with respect to important cases, the extent of their legal practice, their annual income, their legal history, etc. These details are then processed by the court administration. The court gets inputs from relevant investigating agencies about whether they have any legal proceedings against the candidate and any other inputs that may make them ineligible for consideration.

Their files are placed before the collegium. The collegium then scrutinises the information on record and, based on the highest standards of judicial scrutiny, arrives at a decision on whom to recommend and whom to ignore, from the names before it. The shortlist prepared by the collegium is then sent up to the government for its approval. We will assess the merit of this procedure in Table 1.

Why is there a need of independence for Judiciary? 

In last few years we have seen many high profile cases related to corruption involving big corporates, bureaucrats and politicians reaching the Courts. Last year, the Supreme Court put in to force slew of measures as a part of Electoral Reform and to curb criminalisation of politics. Though our elected representatives tried hard but no pressure could penetrate the insulations made for its own safety by the Supreme Court. Thus there is inevitable need that the judges remain independent of the parties to the dispute as well as of all external and internal pressures which may distort their verdicts. Also, the independence of the judiciary is an essential attribute of the Rule of Law which one of the prime feature of the Indian Constitution.                    

Looking from the perspective of Independence of Judiciary in the era of collegium. (Table 1)

1. It has been able to save itself from the arm twisting of executive as happened in the era of Emergency. (But recent claims made by Justice Markandey Katju tells other stories too.)
2. By giving so many sound judgment in the larger interest of the people, it has gathered faith of the people. Generally, people trust more in judiciary than any executive. (However, this comparison is only qualified.) 
1. Affected by Kin Syndrome i.e. judge’s kins have got favour in promotions.
2. Lack of transparency and objectivity on criteria in the process of appointment. Complete process is opaque.
3. Collegium is not diversified.
4.  Long delay in delivering justice due to vacancy in the courts as well as due to the inability of judges to organize time effectively and manage their board efficiently.
1. To make the process of appointment more transparent.(It is certain that the newly passed bill will come to the SC for judicial review, the SC should push for more transparency in the appointment even if the recently passed NJAC Bill,2014 prevails.)The irony is that the SC itself has pushed for transparency in governance. It should follow what it teaches to others.
2. Radical transformation in the Justice Delivery Mechanism to make process of Justice delivery efficient and time bound.
1. Delay in delivery of justice and some compromised judgments made by judges on the partisan considerations such as caste, regional, personal affinities etc. have eaten respect for the Judiciary.
2. Interference of executive: We have seen it in the passage of National Judicial Appointment Bill, 2014.

Recently the Constitution (99th Amendment) Bill and National Judicial Appointment Commission Bill (NJAC), 2014 were passed by both the houses of parliament. It is the characteristic of democracy that nothing should go unopposed. So let us see different aspects of the provisions in Table 2.

 Table 2
Serial No.
Proponents of NJAC Bill 2014 in current form
Opponent's counter argument against the NJAC Bill 2014.
The composition of the JAC is the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons selected by a panel consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha.

The judiciary has the biggest say in its working and that its independence is not compromised.
 If any two members express disagreement on a candidate, the appointment cannot go through. Thus, in any selection, the unanimity of the three judicial members will not count if they cannot carry two out of the remaining three with them. It will inevitably lead to an impasse, and since the country desperately needs judges, compromises will be made to secure consensus, leading to the entry of compromised candidates.

Another serious problem arises with regard to the selection of the two eminent persons. They hold a crucial, perhaps even the determinative position. They can block an appointment by themselves, and in a disagreement between the judges and the Law Minister, their vote will drive the matter towards, or away from, the judges.
Since the Leader of opposition is involved there will be fair selection of eminent members.
It cannot be guaranteed that their selection will be impartial. Since all political parties have been equally harmed by so called Judicial Activism and reforms brought by the SC, the Prime Minister and Leader of Opposition may collude to outvote the Chief Justice.

The government is the largest litigant in the courts. Every law, rule, regulation, policy and decision of the government has come into sharper legal and constitutional scrutiny. The way our investigating agencies like the CBI, IB etc. are being used, the govt. may collude with the Leader of Opposition for some compromises.
A JAC that restores parity between the executive and judiciary in the judicial appointment process is constitutionally valid. 
The JAC can be modified or altered by Parliament by ordinary law (Article 124A). This configuration of six members is not part of the Constitution. The JAC can be ‘packed’ by pliant elements in future by the executive even by an Ordinance and the JAC can recommend non-meritorious persons even on the basis of caste, religion or loyalty to the government.
Article 124(3) of the Constitution prescribes the minimum requirement of a person to be eligible to be appointed as a Supreme Court judge, Section 5(2) of the NJAC Act, 2014 can now prescribe “any other criteria of suitability as may be prescribed by the regulations.” 
 Similarly, additional criteria not mentioned in the Constitution can be added for High Court judges. The eligibility of Supreme Court and High Court judges will be determined not just by the Constitution but by “regulations” of the Commission.

There is no provision recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI (unless physically impaired) 

There is no provision of recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI.           

It will make young and talented ones eligible to the post of CJI.

The constitutional convention of seniority has been adhered to from 1950 except for the two supersessions concerning Justice A.N. Ray and Justice M.H. Beg. 

This loophole may utilized in the favour of lobbying parties or if govt. is not happy with the judgment of "to be appointed" Judge.
For the appointment of High Court judges, the  act also requires the views of the Governor and Chief Minister to be given in writing and “as prescribed by the regulations.”

It will strengthen federal character of our democracy.
The Act is silent as to what happens if the Governor or Chief Minister or both object.

Many Chief Ministers, in recent years, have been lobbying for the selection of judges on the basis of Caste, Religion and Regional basis. Such provision may compromise on the merit and core principles of justice.
The JAC Bill provides that the Central government will appoint the officers and employees of the Commission, making its secretariat a government department.
This will reduce favouritism by judges in the appointment of officers.
This cure is more hazardous than malaise. If the secretariat or officers and servants of the JAC are treated as government departments, there are multiple ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.

 Provisions in few other countries

1. United States of AmericaThe United States has the Judiciary Committee of the Senate comprising 18 members; it has the resources to unearth and examine every aspect of the candidate’s record. The ‘public’ senate hearings for appointments of judges to superior courts in the U.S. are another example of transparency. The standards of judicial selection include experience, integrity, professional competence, judicial temperament, and service to the law and contribution to the effective administration of justice.
2. United Kingdom: The U.K. Constitutional Reform Act, 2005 made merit the sole basis of selection to the judiciary and one of the important reforms in the Judicial Appointment Commission was to diversify the commission. The Commission is made up of 15 members: 2 from the legal profession (1 barrister, 1 solicitor), 5 judges, 1 tribunal member, 1 lay justice     (magistrate), 6 lay people, including the chairman.  The JAC is supported by a group of 70 staffs to scrutinize the applicants in detail.
The JAC assesses candidates against five merit criteria:

1. Intellectual capacity 2. Personal qualities 3. An ability to understand and deal fairly 4. Authority and communication skills 5. Efficiency

Initially Govt. of India was also of the view to emulate U.K. Model in Indian condition but got deviated.


In the era of globalisation, we cannot ignore the global trend in the judicial appointments which is tilted towards independent and diversified commissions. I think none of us would disagree that no law can be perfect and without its own shortcomings. However incorporating the key principles of transparency may reduce its extent of imperfection which has been, I think, most important reason for criticism of collegium system. The diversity of any institution makes it inclusive and enables each member to bring the knowledge, expertise, and most importantly, the independence of mind and the versatility of experience. So, it is good that govt. has taken step in the direction of reforming judicial system, but these steps should not jeopardies the independence of the judiciary which is core to principle of Justice.

What do you think about National Judicial Appointment Commission Bill (NJAC), 2014?

How appointment of Justices to Supreme Court and High courts be made transparent and unbiased?

What do you think about Indian Judicial System? How it can become better?

(Written by Sujit Bharti, an alumnus of IIT Bhubaneshwar)



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