<p>While the National Judicial Appointments Commission will no doubt make the selection process more transparent and broad-based, there are several areas of concern that need to be addressed. <br /><br /></p>.<p>The commission will be a six-member body that will be responsible for making appointments to the higher judiciary. The Chief Justice of India (CJI) will be the chairperson, with the other members of the commission being two Supreme Court judges next to the CJI in seniority, the Union law minister, and two eminent persons nominated by a collegium consisting of the prime minister, the CJI and the leader of the Opposition in the Lok Sabha. <br /><br />The Bar Council of India is concerned that the ‘eminent persons’ on the commission, assuming they are not from the legal fraternity, will not be able to assess the knowledge, merit, ability or integrity of the persons to be appointed to the higher judiciary. However, being an able administrator is a quality that is as important as the ability to theorise and conceptualise, especially for a judge who goes on to become the Chief Justice of a high court or even CJI. <br /><br />On the judicial side such a judge is first among equals, but on the administrative side the responsibility of managing the business of the court is exclusively his; it is his privilege to constitute benches and allocate judicial work to them. Thus, an eminent person drawn from civil society, with experience in manpower planning, should be given a seat on the commission as he or she will be able to identify which prospective appointees possess the qualities of a good administrator. <br /><br />Juristic learning<br /><br />As far as the second ‘eminent’ person is concerned the Bill should instead provide for one ‘distinguished jurist’ to be a part of the commission. Article 124 (3) of the Constitution, whereby ‘distinguished jurists’ are eligible to be appointed to the Supreme Court, was included to ensure that men and women who were possessed of outstanding legal and juristic learning would be appointed to the Supreme Court. As no distinguished jurist has ever been appointed to the Supreme Court it is imperative that at least one ‘distinguished jurist’ be given a seat on the commission. This distinguished jurist, who will most likely be a law professor or an academic lawyer, will be ideally suited to assess the suitability and qualities of fellow jurists who are fit for appointment to the Supreme Court.<br /><br />After the Bill was tabled in the Rajya Sabha a former CJI expressed his concern that there was no clarity on what would happen if the six members did not agree on the same names. Therefore the Bill must address the following questions that arise when the commission is deadlocked: Will the majority prevail? If yes, what if there is a tie?<br /><br />In a situation where the two senior judges, the Union law minister and the two eminent members disagree with the views of the CJI, can it be said that the collective weight of the opinion of other members would be set at naught merely because the CJI does not agree? The CJI is undoubtedly the head of the Indian judiciary but, as former CJI A M Ahmadi put it, “it is one thing to say that great weight should be attached to the opinion of the CJI and another thing to say that amongst the consultees his word will be final.” Therefore the views of the majority must prevail in situations where a consensus cannot be reached.<br /><br />The members of the commission may also be equally divided over a prospective appointee and a casting vote will have to be exercised to break the deadlock. In such a situation the CJI must be vested with the casting vote as he is the chairperson of the commission. This is the practice followed in the UK where the chair of the panel that appoints judges is vested with the casting vote in the event of a tie. It must be emphasised that giving the CJI the casting vote will not mean that the CJI’s opinion is given primacy as the view of the majority will always prevail, even if the CJI is in the minority.<br /><br />The Constitution (120th Amendment) Bill, already passed by the Rajya Sabha, will insert an enabling provision in the Constitution providing for a Judicial Appointments Commission. However the composition, functions and powers of the commission, among other things, will be contained in the Judicial Appointments Commission Bill which is an ordinary piece of legislation. Thus, a future government with an absolute majority in both Houses can exclude or limit the role of the judiciary in the selection process without the need for a Constitutional amendment. <br /><br />Therefore the composition of the commission, with the CJI as its chairperson, must be given Constitutional status in the Amendment Bill when it is taken up by the Lok Sabha. If the composition of the commission is given permanence in the Constitution, the amendment Bill will most likely withstand judicial scrutiny. If that happens, the commission, 23 years after it was first mooted, will finally be a reality. <br /><br /><em>(The writer is a senior Supreme Court advocate)</em></p>
<p>While the National Judicial Appointments Commission will no doubt make the selection process more transparent and broad-based, there are several areas of concern that need to be addressed. <br /><br /></p>.<p>The commission will be a six-member body that will be responsible for making appointments to the higher judiciary. The Chief Justice of India (CJI) will be the chairperson, with the other members of the commission being two Supreme Court judges next to the CJI in seniority, the Union law minister, and two eminent persons nominated by a collegium consisting of the prime minister, the CJI and the leader of the Opposition in the Lok Sabha. <br /><br />The Bar Council of India is concerned that the ‘eminent persons’ on the commission, assuming they are not from the legal fraternity, will not be able to assess the knowledge, merit, ability or integrity of the persons to be appointed to the higher judiciary. However, being an able administrator is a quality that is as important as the ability to theorise and conceptualise, especially for a judge who goes on to become the Chief Justice of a high court or even CJI. <br /><br />On the judicial side such a judge is first among equals, but on the administrative side the responsibility of managing the business of the court is exclusively his; it is his privilege to constitute benches and allocate judicial work to them. Thus, an eminent person drawn from civil society, with experience in manpower planning, should be given a seat on the commission as he or she will be able to identify which prospective appointees possess the qualities of a good administrator. <br /><br />Juristic learning<br /><br />As far as the second ‘eminent’ person is concerned the Bill should instead provide for one ‘distinguished jurist’ to be a part of the commission. Article 124 (3) of the Constitution, whereby ‘distinguished jurists’ are eligible to be appointed to the Supreme Court, was included to ensure that men and women who were possessed of outstanding legal and juristic learning would be appointed to the Supreme Court. As no distinguished jurist has ever been appointed to the Supreme Court it is imperative that at least one ‘distinguished jurist’ be given a seat on the commission. This distinguished jurist, who will most likely be a law professor or an academic lawyer, will be ideally suited to assess the suitability and qualities of fellow jurists who are fit for appointment to the Supreme Court.<br /><br />After the Bill was tabled in the Rajya Sabha a former CJI expressed his concern that there was no clarity on what would happen if the six members did not agree on the same names. Therefore the Bill must address the following questions that arise when the commission is deadlocked: Will the majority prevail? If yes, what if there is a tie?<br /><br />In a situation where the two senior judges, the Union law minister and the two eminent members disagree with the views of the CJI, can it be said that the collective weight of the opinion of other members would be set at naught merely because the CJI does not agree? The CJI is undoubtedly the head of the Indian judiciary but, as former CJI A M Ahmadi put it, “it is one thing to say that great weight should be attached to the opinion of the CJI and another thing to say that amongst the consultees his word will be final.” Therefore the views of the majority must prevail in situations where a consensus cannot be reached.<br /><br />The members of the commission may also be equally divided over a prospective appointee and a casting vote will have to be exercised to break the deadlock. In such a situation the CJI must be vested with the casting vote as he is the chairperson of the commission. This is the practice followed in the UK where the chair of the panel that appoints judges is vested with the casting vote in the event of a tie. It must be emphasised that giving the CJI the casting vote will not mean that the CJI’s opinion is given primacy as the view of the majority will always prevail, even if the CJI is in the minority.<br /><br />The Constitution (120th Amendment) Bill, already passed by the Rajya Sabha, will insert an enabling provision in the Constitution providing for a Judicial Appointments Commission. However the composition, functions and powers of the commission, among other things, will be contained in the Judicial Appointments Commission Bill which is an ordinary piece of legislation. Thus, a future government with an absolute majority in both Houses can exclude or limit the role of the judiciary in the selection process without the need for a Constitutional amendment. <br /><br />Therefore the composition of the commission, with the CJI as its chairperson, must be given Constitutional status in the Amendment Bill when it is taken up by the Lok Sabha. If the composition of the commission is given permanence in the Constitution, the amendment Bill will most likely withstand judicial scrutiny. If that happens, the commission, 23 years after it was first mooted, will finally be a reality. <br /><br /><em>(The writer is a senior Supreme Court advocate)</em></p>
