Can NJAC resolve judiciary’s credibility crisis?

Reviving the commission can bring transparency to judicial appointments but legal, political challenges remain

Wads of currency notes found in the official residence of Delhi High Court judge Justice Yashwant Varma have revived the debate on reforms in the process of appointments to higher judiciary. The debate is on restoring, in some form, the National Judicial Appointments Commission (NJAC), which was almost unanimously passed by Parliament but struck down by the Supreme Court as unconstitutional.

Debates and legal battles in the apex court and outside about judicial appointments have been on for decades. From the 1950s till the 1970s, it was the executive which appointed judges to the higher judiciary. As Prime Minister, India Gandhi ignored seniority and made appointments to the position of CJI in 1973 and 1977. Later, the controversial Collegium system in which the CJI and four senior-most judges of the SC would recommend candidates for appointment as judges, came into force. This would have to be accepted by the executive.

This system where judges appoint judges without interference from the executive itself came after hearings over a few judgements, broadly known as the First, Second and Third Judges Case. The interpretation of the word ‘consultation’ with the CJI, as mentioned in Article 124 providing for the appointment of judges and through that, primacy to the judiciary in appointments, was the focus of these three judgements.

The court, which in the First Judges Case (1981) rejected the argument that ‘consultation’ meant ‘concurrence’, overturned its verdict in the Second Judges Case (1993) by saying that it was indeed concurrence and provided for the establishment of the Collegium, removing entirely the executive’s role. In the Third Case (1999), it clarified the meaning of consultation and expanded the Collegium from three to five senior-most judges of the top court.

As regards the role of the executive, if it is not agreeable to the recommendation of the Collegium, it can send it back to the judges’ panel, but if the Collegium reiterates its recommendations, the Centre would have no option but to approve it. However, it is another matter that the Centre, in a few cases, sat over the proposals. In some cases, like that of senior advocate Aditya Sondhi, the Collegium sent his name twice for appointment as a Karnataka High Court judge but the government delayed its decision. A distraught Sondhi withdrew his consent.

The political executive was obviously not happy with the Collegium system as the former was kept out of the process. The Narendra Modi government brought in the NJAC in 2014 through the 99th Amendment to the Constitution and expanded Article 124. The Commission would consist of the CJI, two senior-most SC judges, the Union minister for law and justice, and two ‘eminent persons’ selected by a committee consisting of the Prime Minister, the CJI, and the leader of the opposition in Lok Sabha. The initiation of names to be sent to the NJAC would be made by the CJI.

Even before the NJAC was tested, it was questioned before the apex court. The court struck it down saying it was unconstitutional and against Article 124 which provided for predominance of the judiciary in appointments. What were the reasons the court, led by then CJI Kehar Singh, offered? At the heart of the SC reasoning was the veto power. The majority 4-1 judgement questioned the veto power and argued
that it could take away the judiciary’s primacy. That three members including the Law Minister could veto a proposal made by the judiciary did not find favour with the judges. The judgement noted that the primacy of the judiciary in the appointment of judges was part of the basic structure of the Constitution.

The Collegium system – in force for over 30 years – has been criticised time and again for its opaqueness, lack of representation for the executive, selection of judges of questionable integrity, and contentious judgements. Three former SC judges strongly denounced the system. One of them was Justice Kurien Joseph, who gave a concurring judgement in the NJAC case. “I regret having been part of the judgement,” he said five years after the SC bench delivered the verdict and emphasised the “trust deficit” which eroded the credibility of the Collegium system. Justice Chalameswar, who delivered the lone dissenting ruling, said the Collegium system lacked transparency, accountability, and credibility. Justice Ruma Pal, in a speech, described the Collegium as “one of the best-kept secrets” of the country. Veteran advocate late F S Nariman suggested the inclusion of a representative from the executive in the Collegium.

Is a resurrection feasible?

Vice President and Chairman of the Rajya Sabha Jagdeep Dhankar, also a senior advocate, expressed concern over the Varma incident and held a meeting with floor leaders of the parties on the issue. He spoke favourably of NJAC. Some opposition leaders, however, wondered if the government perhaps wanted to know the parties’ position on NJAC through this meeting.

Some of the recent incidents including the note-burning at Justice Varma’s house have cast a shadow on the judiciary’s credibility. The pressure is on the CJI to act and restore that credibility.

Can the NJAC be revived? Will the government bring a bill for the NJAC before Parliament and get it passed? – Unlikely because it will need a
two-thirds majority which the government doesn’t have and the Opposition may not cooperate with the government this time.

The other option is for the apex court to initiate a judicial review of the NJAC judgement. An NJAC that restores primacy to the judiciary in appointments and veto power, has a reduced total number of members, and has the Union law minister as a member may find favour with the apex court. Unlike the Collegium system, the NJAC will add a semblance of transparency and credibility to judicial appointments. This, along with the compulsory declaration of assets for judges, will take judicial reforms forward.

(The writer is a senior journalist)