The Supreme Court is examining the constitutionality of the National Judicial Appointments Commission (NJAC). The government pushed through the law on this with undue haste, without consultation with the judiciary. Members of Parliament were unanimous in their condemnation of the collegium system.
In the debate on the NJAC, it was alleged that ‘cronyism’ had been a factor in appointing judges. Now the apex court has asked the government to give a record of all recommendations of the collegium era when judges of supposedly ‘doubtful integrity’ were recommended by it and the collegium refused to accept the government’s views on their credentials. The collegium and the government did act in harmony and the executive’s views were respected. But some of the best judges were brought to the Supreme Court late so that they did not become chief justice of India (CJI).
The independence of the judiciary is not a matter of judges’ rights — they are the rights of the citizens. Ultimately, judicial legitimacy rests on the public’s confidence in courts. Appointing judges is seen as a crucial mechanism to achieve judicial independence. Judges must be independent of the executive. The NJAC in its present form may not achieve these ideals.
We had the primacy of the executive in appointing judges in the first four decades of our republic. Though most of the judges appointed then were independent, upright and fearless, at times the government did succeed in appointing pliant judges. Justice VD Tulzapurkar had observed that “sycophantic chief justices” were a threat to the independence of the judiciary. The NJAC’s provision of appointing the senior-most judge as CJI if found ‘fit’ is clearly an assault on judicial independence. ‘Fit’ is a vague term. Adding words such as ‘ability, merit and suitability’ to seniority also threatens the independence of the judiciary. Moreover, leaving the ‘any other criteria of suitability’ to be laid down in the regulations is a case of an excessive delegation of powers.
Mohan Kumaramangalam, then a Union minister, had said in Parliament in 1973: “In appointing a person as chief justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics.” The NJAC, with the law minister as a member, may be used by the government in appointing judges of its choice. Moreover, since the government is the biggest litigant, it should not be allowed to cherry pick judges.
Even about two ‘eminent persons’ in the NJAC there is no clarity. They are to be selected by the Prime Minister, the leader of the Opposition and the CJI. One possibility is that two politicians would join hands and make the CJI’s opinion irrelevant.
The NJAC seriously undermines the primacy of the CJI’s opinion. Any two members can block a name. No quorum has been prescribed and thus if other members are not available, an NJAC meeting can still be held by the remaining members or even by one member. Thus, the NJAC proceedings will be valid even if neither the CJI nor two judges are present and the law minister, with two eminent persons, may make ‘valid recommendations’ on appointing judges.
(Faizan Mustafa is vice-chancellor, NALSAR University of Law. The views expressed by the author are personal.)