Author Name:   sarthak.sonwalkar

The article pertains to the recent uproar created by the NJAC Act and seeks to analyze that will it be a compromise over independence of judiciary

Judicial Appointment Commission: A Compromise over Independency of the judiciary?

Abstract
The procedure for appointing the judges to the Supreme Court and the High court has been already provided under Articles 124(2) and 217(1) respectively of the Indian Constitution respectively. Parliament has already passed the National Judicial Appointment Commission (NJAC) bill and so has the 121st Constitutional Amendment Act, which will replace the hitherto collegium system. The collegium system has been much criticized for the lack of transparency and its secretive nature. The NJAC would involve members from judiciary, political parties and the civil society. However, in the collegium system, only judges used to appoint judges. Besides ensuring that person recommended is of integrity and ability, in a bid to promote the democratic process (transparency) of electing the judges, the NJAC Bill has drawn much criticism as it is being termed as a compromise over the independency of the judiciary. The introduction of the NJAC is being seen as a fundamental change to the Constitution of India and is being seen as an instrument to strengthen the Indian democracy and also the judiciary. However, the debate has revolved around that who shall have the upper hand in appointing the members of the judiciary, judiciary itself or the executive. The main concern is around the constitutional principle of the independence of the judiciary and on the other hand, the accountability it owes to the people. The members of the higher judiciary have opposed the new system while upholding the earlier one.

This article seeks to discuss the viability of the NJAC Bill in the light of three judges’ cases whereby the Apex Court has expressed different opinions. The paper would try to analysize that whether the introduction of this system will actually result in a compromise over the independence of the judiciary or will strengthen it in turn.

Undoubtedly, the institution of judiciary is one of the most important organs of a democratic setup. It has been burdened with the most important task of administering justice to the citizens. Its function is to ensure to realization of the basic tenets or the principles enshrined in the Preamble to the Constitution. It has been upheld and has been understood that an independent judiciary is the cornerstone of any democracy. Looking back at the Constituent Assembly debates, the existence of independent judiciary was envisaged by the framers of the Indian Constitution, keeping legislature out of the sphere of judicial appointments. Nehru in this regard had said that such system would actually enable the judges to become the “people who can stand up against the executive government and whoever may come in their way.”

In the recent times, the appointment of judges to the Apex Court as well the High Courts has widely become a subject of deep conflict between the Judiciary and the Executive. Before moving further into the topic, I believe it would be crucial to understand the concept of “independence” of judiciary. Plainly, it could be understood as that the judiciary has got to play a crucial role. It is the guardian of justice, a body which keeps a constant check on the power of executive and the ultimate resort or the authority which has the final say. Briefly, impartiality and non-interference could be termed as the main facets of the judicial independence. In simple words, judiciary is suppose to be accountable to the citizens by its reasoned decisions while ensuring that there isn’t any sort of interference in its functioning from other organs. Judiciary acts as the protector of the Constitution and in that course it might have to strike down the legislative, executive and the administrative acts of the Central and the State Governments. So, in order for rule of law to prevail, it is regarded that judicial independence is of prime importance.

A belief has been generated that thence the judiciary itself, through its representatives, is perhaps in the best position to decide about itself, its composition and hence its independence could be preserved. It has been quite frequently apprehended that this independence of the judiciary would be threatened by the interference of Executive through appointments, transfers and removals of the judges.

This article, in its limited scope, would endeavor to examine the veracity of the rhetoric resistance between the judicial independence and transparency and inclusive process of judicial appointments, especially in the light of the recently passed Judicial Appointment Commission Bill, the three judges’ case, keeping in mind the recent turn out of the events, which, in one way or the other, have caused the debate to remain in motion.

A BRIEF OVERVIEW OF THE JUDICIAL APPOINTMENT COMMISSION BILL
Hitherto, the Judges of the Supreme Court and the High Court have been appointed by a collegium comprising of the Chief Justice of India and four seniormost judges of the Supreme Court of India. However, it shall be noted that there is no mention of the collegium in the Indian Constitution. The genesis of the collegium system could be traced back to the three judges’ case, which I will discuss in brief in the next part of this article.

Articles 124(2) and 217(1) provide for the appointment of the judges of the Supreme Court and the High Courts. These Articles provide for the appointment of the judges by the President of India after due consultation with the Chief Justice of India in case of appointments to the Supreme Court and Chief Justices of the respective High Courts, Governor and Chief Minister of the concerned state. The provision regarding transfer of judges could be found under Article 222(1) of the Indian Constitution. In 2003, the then National Democratic Alliance Government had made an unsuccessful attempt to replace the collegium system. However, this time the bill has been passed by both the houses of the Indian Parliament in order to bring about a change in the appointment process.

The Judicial Appointment Commission bill has been passed by both the houses of the Parliament almost unanimously (latest by Lok Sabha in August, 2014). The bill was introduced in the Parliament, along with Constitutional One Hundred and Twentieth Bill, which would in turn insert Article 124A in the Indian Constitution and create a National Judicial Appointments Commission consisting of six members viz., the Chief Justice of India (chairman), two other judges of the Supreme Court of India (next in seniority to the Chief Justice of India), Union Minister of Law and Justice and two eminent persons to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition. The primary job of this Commission would be to recommend the suitable persons for appointment as the Chief Justice of India as well as the judges of the Supreme Court, chief justices of the High Courts along with other judges. In case of vacancies, the recommendations to the Commission would be made by the Central Government within a given timeframe. The Commission may make provisions for the short-listing of the candidates. The main ambition of this bill is to ensure equal participation of the Executive and the Judiciary and that the appointments are more transparent, participatory and objective. The Commission’s main objective would be to perform the tasks relating to appointment, transfer and quality of the candidates. I opine that the basic reason behind this seems to find an appropriate mechanism to deal with the alleged lack of transparency in order to restore public faith in the keepers of law and thence democracy. However, for NJAC to become reality, it will have to be ratified by fifty percent of the State legislatures and will then be sent for the assent of the President. Rajasthan has become the first state to ratify the bill.

INDEPENDENCE V. TRANSPARENCY & ACCOUNTABILITY
During the initial years of the operation of the Indian Constitution, it was being suggested that this system of appointment of judges was being impacted with interference from the executive, especially in the Indian states and was leading to the erosion of the independence of the Indian judiciary in turn. However, in 2008, it was stated that original constitutional procedure be restored in the wake of Supreme Court decisions in the Judges’ Appointment Cases and recommended the establishment of National Judicial Appointments Commission and reconsideration of the three judges’ case.

Corruption has become all pervasive and has attacked the roots of Indian democracy as well and has tried to challenge its legitimacy. Absence of clear cut mechanism to check it often leads to arbitrariness and further leads to an increment in it. Such instances generate the need of ensuring accountability in the regime of citizen awakening. Judiciary being the upholder of justice in the country, the need for accountability actually arises from within it so that a proper regime of checks and balances could be established in order to prevent the growth of any unnecessary appropriation of power. It has often been voiced that the collegium system has given unfettered power to the judges to appoint the judges of Supreme Court as well as High Court and is thus very opaque and not democratic. The collegium system came under serious scrutiny after it nominated Chief Justice P.D. Dinakaran of the Sikkim High Court in 2009 for the Supreme Court and later on he had to resign from his position after cases of corruption and misconduct were alleged against him and the recent withdrawal of name by senior Supreme Court advocate Gopal Subaramanium after the Government returned his name back to the collegium in the light of negative reports by the Central Bureau of Investigation and the Intelligence Bureau and many such recommendations and appointments in the past. So, undoubtedly, the collegium system somewhere has its own serious flaws. Hitherto, the issue of accountability and transparency hasn’t been addressed properly. In this regard, it has been argued that executive shall have a say in the appointments, being the representative and voice of the people. In an attempt to ensure the accountability in the appointments and to bring about transparency, the Judicial Appointments Commission bill was introduced.

However, much has been spoken and debated about the bill turning out to be a compromise over the independence of the judiciary. The debate has largely revolved around as to whether it would result into interference in the independent status of the judiciary, while on the other hand, a compromise, in pursuit of ensuring accountability and transparency. Senior Bar leaders seem to have taken the view that this independence would be largely compromised by the “outside participation”.

THREE JUDGES’ CASE

S.P. Gupta Case (First Judges Case)

This case is also popularly known as the judges’ transfer case. The Apex Court here was addressing a writ petition, filed in response to a circular sent by the then Union Minister of Law and Justice to the Governors and Chief Ministers of the State stating that one-third of the total judges in the High Court shall be from outside the state. Constitutional validity of the same was brought under challenge along with a challenge to certain additional judges being reappointed for another period of three months and then hence a question was raised over the independence of the judiciary. The case focused on the primacy of executive in the whole appointment process of the judges.

First Judges’ Appointment Case (Second Judges Case)

The Judges’ Appointment Case is where the genesis of present system of appointments could be traced. Brief summing up, the Supreme Court of India held that the process of the appointment of the judges has to be a consultative as well as integrated participatory process. It emphasized on the Chief Justice of India has to play a crucial role in the appointment process. The judges opined that the Chief Justice of India has a crucial role in the image and upkeep of the judiciary and hence shall have a pivotal say in the appointments and transfers of the judges of the Supreme Court as well as the High Court (Chief Justice of the respective High Court). In case there are conflicting opinions, the role of the Chief Justice becomes pivotal. So, it was held by the Supreme Court of India that the Chief Justice’s say will have to be considered for the appointments and transfer of the judges of the Apex Court and the High Courts. The initiation of the collegium system for appointment of judges could be traced to this case. The Apex Court stated that such system would thrive to achieve the constitutional purpose of selecting the ones to the higher judiciary, who are best suitable for the position and in turn will help to protect the independence of the judiciary. It was further stated that the Chief Justice of India, in case of Supreme Court and Chief Justices of the High Courts are in best possible position to decide on the integrity and suitability of the people for such positions. It shall be noted that this case had overruled the S.P. Gupta Case.

Second Judges’ Appointment Case (Third Judges Case)

The main issues involved in this case was that whether the term “consultation” mentioned under Articles 217(1) and 222(1) constituted the opinion of plurality of the judges or opinion of the Chief Justice of India only, whether the transfer of judges could be reviewed by the judiciary, whether the term “consultation” under Article 124(2) involves wider consultation with other judges as well, whether recommendations made by the Chief Justice are binding on the Indian Government. The Supreme Court, in this case, focused on not vesting the authority of appointing the judges in any one person, but the Chief Justice in concurrence with other judges as well. It again criticized the decision of the Court in First Judges Case by holding that it didn’t find any merit in giving primacy to the executive in the appointment process. The view expressed in the Second Judges Case was reiterated by stating that the opinion of the Chief Justice is a reflection of the opinion of the judiciary. The Apex Court finally created a collegium system for the appointment of the judges which would consist of the Chief Justice of India and four seniormost judges of the Supreme Court. It was stated that though the executive would be making the final appointment, it would have no role to play in selection of the judges for both Supreme Court and the High Court.

CONCLUSION
The ambit of the power of judiciary is already quite large, which primarily includes striking down of laws, non-interference in the basic structure of constitution by any amendment, etc. It would be very arbitrary in my view if the selection process of such a higher institution is left to a restricted body of judges (who in turn elect their own people), nothing would be a more compromising situation. It should be first understood that for whom does the judiciary stand and protect rights? It is of course the people of India. How unfair it would be to not include people in its appointment process. In order to bring about a regime of transparency it has become necessary to include the people in its decision making process and inclusion of executive might serve as the best choice. However, in the true sense, as the Standing Committee Report on the bill puts it, the independence of the judiciary could only be secured by the appointment of the individuals of outstanding legal caliber and impeccable integrity and credibility with correct consideration to the Bench of the higher judiciary. In my opinion, in order to make the democratic principle of institutional checks and balances to succeed, it is desirable and essential to involve executive in the appointment process of the judges. The appointment process shall not be left purely to be their business, but rather people should be involved in the appointment process and perhaps the best way to ensure this could be that representatives of people be included in it. Further, the Standing Committee also recommended that All India Judicial Service should also be introduced in order to attract the young talent to the judiciary. I would further like to suggest that the present criterion for appointment of judges to High Court and the Supreme Court, which asks for a minimum experience of certain years, should be scrapped because it so happens that only a few years or months are left in certain cases before retirement because of which a proper establishment is not achieved and the institution is not better served. I, hence, argue that why reform in the judicial appointment is needed is to bring about transparency and accountability and in order to secure its true independence. The so called independence with accountability will perhaps be much better.

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