The noted jurist Granville Austin wrote that “An independent judiciary begins with who appoints what calibre of judges”. The Supreme Court hearings to test the constitutional validity of laws for setting up the National Judicial Appointments Commission (NJAC) must be understood in the light of that principle, not merely as a face-off between the executive and the judiciary. The issue of judicial appointments has been controversial since Indira Gandhi started superseding senior judges and appointed her nominees as chief justices.
Faced with threats to its independence, the Supreme Court wrested the power of judicial appointments in 1993 through what came to be known as the ‘collegium system’ — making India the only country in the world where judges appointed judges. The lack of transparency and dubious appointments at the cost of well-deserving judges, however, severely discredited the system, prompting calls for its disbandment. The NJAC Act and its related amendment as a result are now notified. The NJAC, which will have the powers to appoint Supreme Court and High Court judges, will be headed by the chief justice of India and will comprise two senior-most apex court judges, the Union law minister and two eminent persons as members.
During the hearing on petitions challenging the NJAC, the SC Constitution Bench has questioned the government on several grounds. Others argue that the NJAC violates the basic structure of the Constitution as it compromised on judicial independence. One is entitled to ask if the mere presence of a member of the executive is enough to compromise judicial independence. It is worth remembering that it was the SC’s decision in 1993 to arrogate to itself the powers of judicial appointments that violated the balance of power among various organs of the State envisaged under the Constitution. The lacunae, if any, with the NJAC are not in the representation given to the government, but is in the fact that it’s an ad-hoc kind of body full of ex-officio people. It would be better if it is made a full-time body like the one in the United Kingdom.