''THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION''

The National Judicial Appointments Commission

Is it the beginning of the end of Judiciary’s Independence?

The clamour against the Courts has been continuous. Initially, there was talk of a ‘committed judiciary. Then, Judicial accountability and transparency. And so on. The latest is – Why should Judges choose Judges? Thus, the effort to replace the Collegium by a Commission. The Bill has already been approved by the Lok Sabha. Is it the right thing to do? I think, No. Why?

            (A) Let us see what is happening in the country.

1.     Who selects the Ministers? The Prime Minister and the Chief Ministers.

2.     Who selects the Generals? The Generals.

3.     Who selects the Army Commanders? The Army.

4.     Who selects theGovernors and the Government servants? The Government.

And so on. Then, why do we want a different method for the Judiciary? Why should the Judiciary be not allowed to select the Judges? Is it an effort to destroy the Institution that alone has performed and exposed the scams and scandals like the Coalgate and 2G?

         

               (B) What is the Constitutional Scheme?

The founding fathers had created a judicial pyramid. The subordinate courts form the base. Then the District Courts. The High Courts at the State level. The Supreme Court was placed at the Apex. They also laid down the procedure for selection and appointment of Judges. The selection and appointments of the officers in the Subordinate and District Courts are made in accordance with the Rules framed and promulgated by the Government in accordance with the Constitution. The ‘control’vests in the High Court. So far as appointments to the higher judiciary are concerned, the matter was considered by the Supreme Court in ‘Supreme Court Advocates on Record Association vs. UOI’ (1993) 4 SCC 441 and then on a Presidential Reference by a nine Judges Bench.

The dictum has been followed. Judges have been selected by the Collegiums and appointed as Judges and Chief Justices in the High Courts and the Supreme Court for  some time now. The scope of interference by the political executive has been reduced to the minimum. Resultantly, criticism from different quarters is understandable. There is talk of setting up a Commission. What is the basic complaint? Will the Commission improve the quality of judges?Or is it the beginning of the end of Judiciary’s independence?

No system of selection can be absolutely perfect. Institutions run by human beings shall reflect human frailties. A fact which deserves mention is that the Constitution itself provides for having the Union and the State Public Service Commissions to make selections for the various Services. The Commissions have been in place for a long time. Has the performance been beyond reproach or even satisfactory? Have these Commissions not been described as the ‘personal service Commissions? The kind of eminent persons, who are proposed to be included in the NJAC are usually members of the State and Union Public Service Commissions too. Yet, what do we have? Petitions in the Courts alleging all kinds of malpractices. Still more, States have moved petitions, prosecuted Members or Chairmen of the Commissions for different irregularities and even offences. Would a similar Commission for Judicial Appointments change everything? Looks unlikely.  

Secondly, State is the single largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges? I think No! It is against the basic principles of Justice & fairplay.

Thirdly, in a democracy, independence of Judiciary is of paramount importance. A fearless and independent Judiciary is a basic necessity under the scheme of the Constitution of India. It is a part of the ‘basic structure’ and should not be sacrificed at the altar of executives’anxiety or ego. Legally speaking, the validity of the proposed Law is extremely doubtful.

And then the Members of the Collegium see the performance of the Judges and lawyers who have to be considered for appointment to the High Courts or the Supreme Court. They examine judgments of the persons who have to beconsidered for  elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the Collegium does not have the mechanism to ‘verify the character and antecedents of Judges.’ I think, it is not so. The Court or/and the Chief Justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

Sometimes, it has been suggested that the Judges indulge in mutual give and take. As a result, some people who should not have become Judges at all, even got elevated to the still higher positions and Courts. Assuming it to be correct, can anybody put his hand on his heart and say that as a people, we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that at the highest level the files are held up till the name of a particular person is cleared by the Collegium? Still more, do our leaders not insist upon representation for every caste, creed and Court in the country at every level? In such situations, mediocrity has prevailed over merit. Unfortunate. But is JAC the solution?  No! A rare exception under the Collegium system has the potential of becoming a rule when the final word is left with the executive. Are the series of scams and scandals that have taken place in the recent past in India not enough to caution us about the level of political morality? And then, Judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril. Let us not do so!