JOIN USThe arguments in the ba-tch of cases challenging installation of National Judicial Appointment Commission (NJAC) were concluded before the Supreme Court July 15. The matter is now reserved for judgment.
n India, judicial appointment has been a topic of adjudication ever since the S P Gupta Case (1981). In this case, the Supreme Court said that appointment of judges in the Constitutional Court comes predominantly within the domain of the executive and only a consultation with the Chief Justice is required.
It was so held interpreting Article 124 and 217 of the Constitution dealing with appointment of judges to the Supreme Court and High Courts respectively. Taking a U-turn, in the second judges’ case (1993) and the third judges’ case (1998), the court opined that consultation would mean concurrence. Thus, a strange mechanism of collegium was evolved.
B R Ambedkar had earlier rejected a judge-centred appointment process in India as a “dangerous proposition”. According to him, “to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the government of the day” (Constituent Assembly Debates Vol. VIII, May 24, 1949).
No doubt, the collegium system has exposed itself and the country badly needed a charge. It lacked fairness and transparency. The process was vitiated by secrecy and subjectivity. The robbed brethren on the bench grabbed the power for appointment. The Supreme Court quite unconvincingly interpreted the word ‘consultation’ with the Chief Justice as occurring in Article 124 and 217 as ‘concurrence’ of the Chief Justice.
Thus, the country developed a system where judges were appointed by judges. The process was opaque and inherently arbitrary. Citizens have practically no role in the process. There is no principle or procedure.
It was in this context that the Centre introduced the 99th amendment to the Constitution and also the NJAC Act, 2014. This change in the law is assailed before the Court. But, the NJAC, in the present form, does not answer the nation’s anxieties on the subject. It simply replaces judicial dominance with executive hegemony. The NJAC also runs the risk of the ‘two eminent persons’ being nominated by a body with “political over-representation.”
This writer had occasion to study the UK system in judicial appointments after visiting the UK Supreme Court in 2013. There, the appointment pro-cess was subjected to radical changes by the Constitution Reforms Act (CRA), 2005 as amended by the Regulations of 2013. The Ministry of Justice had been of the view that “openness and transparency should relate both to judicial appointments themselves and the appointments to the selecting body itself”.
This is a meaningful state gesture which a country like India should emulate and evolve. In the U K, there is an independent 15-member Judicial Appointment Commission (JAC) doing the job. There are five judicial members, two lawyer members, five lay members, an officer of Tribunal, and a Magistrate in the Commission. The Commission has a layman as its president.
Statutory consultations
The statutory consultations form a significant component in the method. More than 900 judges are appointed every year in the UK. In the appointment process to the Supreme Court, apart from the JAC, the Commissions and first ministers from the constituent states – England, Scotland and Northern Ireland – have a participative and representative role.
In the UK, unlike in India, an eligible person is free to apply for judgeship. Selection process starts with vacancy assessment and notifications. Thus, equality of opportunity is ensured. It is followed by a relatively transparent process of assessment of merit by way of series of consultations and interviews. The country is now even thinking about the system of open interview like the one in South Africa.
True, the process in the UK is bit complex. But so far, there has not been any valid or acceptable charge of corruption or favouritism in selection. Though the legislature in Britain has no role in the appointment process, it is the legislative activism of the
British Parliament, by way of the CRA, that evolved one of the finest models in judicial appointments.
The NJAC judgment by the Supreme Court may either endorse the new body or strike it down. In either case, the country’s aspirations would remain unattended. The scope of judicial review is limited whereas legislature is capable of exploring all the possibilities and evolving the best, by taking lessons from other jurisdictions as well.
We need to think beyond the collegium and the present NJAC. We need a radical parliamentary legislation to design a better device for judicial appointments which is fair, objective, open and democratic. Appointments to the Constitutional Courts need to be a public affair.
(The writer is a lawyer in the Supreme Court and Kerala High Court)