The passage of the two Bills that aim to replace the collegium system with a national judicial appointments commission (NJAC) has led to the formation of two camps: While one camp feels that the judiciary will cease to be independent, the other believes that the executive has corrected an anomaly.
So what is the correct position?
The two Bills remove the basis of the 1993 and 1998 judgments of the Supreme Court, which had rewritten constitutional provisions and virtually arrogated to itself the power of appointing judges to the SC and high courts by giving primacy to the opinion of the Chief Justice of India (CJI), later expanded to the collegium.
The Constitution mandates that such power would rest with the President of India in consultation with the CJI.
The Constituent Assembly had on May 24, 1949, emphatically rejected the amending of these words, “it shall be made with the concurrence of the CJI”. BR Ambedkar defended the current Article 124, stating, “There can be no difference of opinion in the House that our Judiciary must both be independent of the Executive and must also be competent in itself.
And the question is how these two objects could be secured...I think, 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. I therefore, think that is also a dangerous proposition”.
Our experience of the last two decades shows how prophetic these words were. Far from the salutary objects in the 1993 SC verdict as to “rule of law, persons with known background and reputation, unimpeachable integrity, selecting the best from those available, ethical behaviour etc”, the appointment procedure had degenerated into mere ‘give and take’, ‘nepotism’, and ‘sycophancy’.
While many good judges have been appointed, a large number of undeserving persons in terms of the SC’s own judgment were also selected.
It is well known that the judiciary is afflicted with mediocrity, inefficiency, lethargy and corruption.
Naturally, the justice delivery system in this country is failing, if it has not failed already, with arrears of over 30 million cases. The biggest victim has been intellectualism on the Bench. The quality of judgments between 1950 and 1990 and post 1990 certify the same.
The judiciary has failed the judiciary.
The two Bills, therefore, not only restore the constitutional scheme and morality of things but also seek to correct the failures of the judiciary.
While I have serious reservations about the NJAC and its functioning, I believe the removal of the judicial power to appoint judges is a step in the right direction. It will stop politics among judges. As for the rest, only time will tell.
(Dushyant Dave is a senior advocate, Supreme Court of India. The views expressed by the author are personal.)