(Published in The News Minute on 19.08.2014)
The National Judicial Appointments Commission (NJAC) and the Constitution Amendment Bill which aims to replace the controversial collegium system that selects the judges to the Hon'ble Supreme Court and High Courts, has been passed by both houses of the Parliament. What remains for the bill to become an act are the resolutions to this effect by more than 50% of the states and the assent of the President. But there are certain pertinent issues that need to be considered.
The National Judicial Appointments Commission (NJAC) and the Constitution Amendment Bill which aims to replace the controversial collegium system that selects the judges to the Hon'ble Supreme Court and High Courts, has been passed by both houses of the Parliament. What remains for the bill to become an act are the resolutions to this effect by more than 50% of the states and the assent of the President. But there are certain pertinent issues that need to be considered.
Much of the hue and cry from among the judicial quarters comes down to one moot point - the absence of majority in the Commission for the judicial members. The Commission comprises the Chief Justice of India, two judges of the Hon'ble Supreme Court, the Union Law Minister and two eminent persons. The members from the judiciary (three in number) and the others have an equal strength. From the collegium system, wherein the total power for selection of judges was vested in the hands of the judges themselves, the NJAC reduces the power of the judiciary to half. A considerable section of the judiciary sees this as a blatant attempt by the legislature to clip the wings of an independent judiciary.
Many voices raise concern that the phrase 'eminent person' has not been elucidated in the Bill. From the bar, some raise concern that they have not been represented in the NJAC, which, to my mind, is a justifiable concern.
Section 5 (2) of the Bill as passed in the Lok Sabha is dreadful. It reads: '... Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.'
It is here that the attempt to pierce through the independence of the judiciary is most conspicuous. This clause mandates, in other words, that from among the 6 members of the Commission, minimum 5 should agree to the name of a candidate if he/she is to be offered judgeship, i.e., a whopping 83.33%. Not only is this way above a simple majority (51% or more), but also of a special majority as is needed in the Parliament (67% or more) to amend/pass certain special legislations. This clause makes it clear that a candidate cannot be offered judgeship even if the CJI, the two Judges in the Commission and one more member agrees to his/her candidature. The power of veto that is provided in the Bill is grossly overweening.
Another important concern is that the Bill remains silent on the transparency of decision making by the NJAC. The raison detre of the NJAC is the lack of transparency in the existing collegium system. Merely by diversifying the members who select/reject the candidates for judgeship, transparency does not come in.
Would the NJAC entertain RTI applications that seek to know the grounds on which a particular candidate was selected/rejected? Or would the process of selection be carried out as if in an open courtroom where any one interested can witness the proceedings? If either of the two is not incorporated, the constitution of the NJAC will make no much difference vis-a-vis the transparency of existing collegium system. Not just that, it will make a mockery of the institutions of such high regard as the Judiciary and the Legislature. The government has very conveniently stayed silent on these important points.
It is to be seen whether the guidelines as will be laid down by the Commission will include in it the above mentioned, or similar, measures for bringing in transparency and accountability. Further, if it does, it should be seen whether the Parliament would pass the guidelines with the same level of interest as it had shown in passing the NJAC Bill. Only then will one be able to understand the true intention of the legislators while they passed this Bill.
Meanwhile, there are already 2 petitions that have been filed in the Hon'ble Supreme Court challenging the constitutional validity of the Bill. The ironical situation where the country's highest court itself sits on judgement of a petition that has been filed in order to prevent it from being caged will be worth a close watch.
