With the passing of the National Judicial Appointment Commission (NJAC) Bill -2014 and historic 121st Constitution Amendment Bill by both the Houses of Parliament, a new history was created.
The legislation which was much-awaited is a need of the hour for a vibrant and clean judicial system. It is a milestone to bring about transparency in the matter of appointment of judges to the higher courts. It is stated that the existing collegium system of the Supreme Court for appointing judges to the Supreme Court and 24 High Courts of India has been questioned at different quarters over the years. Therefore, the passing of the new Bill on NJAC is a welcome step and is also a success story of the new Government under Prime Minister Narendra Modi.
It has replaced the existing system of collegium of the Supreme Court which of course will take eight to nine months after the Constitutional amendment Bill is ratified by 50 per cent of the State legislative Assemblies and finally it gets the President’s seal.
The collegium system had its flaws. It was discussed in the Parliament that many good and deserving Judges could not make it to the apex court. It is gratifying to note that under the new legislation, the commission will decide appointment to the Supreme Court Bench and High Courts. It was also accepted unanimously that ‘seniority’ along with ‘merit’ will be the yardsticks for elevation as a Judge. Union Minister of law and Justice Ravi Shankar Prasad rejected the demand on the floor of the House for a State-level Judicial Appointment Commission on the ground that Article-124 and Article – 217 of the Constitution have made it clear that only the President of India can appoint Judges of the Supreme Court. It was explained by the law Minister that the Bill aims at ensuring only meritorious people are selected to be appointed as Judges as there was public criticism that through collegium type of system unworthy people have entered the temple of justice in the recent past.
This may not be accepted to be true in its entirety but it certainly has some relevance and more so in view of the recent statement of Justice Markendeya Katju, former Judge of the Supreme Court, who gave startling revelation as to how due to political patronage an Additional Judge of the Madras High Court was made permanent and his matter was cleared by the Supreme Court collegium with the then CJI as the Chairman. Justice Katju’s allegation regarding questionable integrity of the Madras Judge was published widely in the media as during the relevant period Justice Katju was the Chief Justice of the Madras High Court. Significantly, the matter came to the surface only a few days prior to the passing of the NJAC Bill.
Notably, the NJAC is a multi-member body comprising of Chief Justice of India, two next senior most Judges of the Supreme Court, the Union law Minister and two eminent persons, for clearing appointments of the Judges of the High Courts and the Supreme Court and for transfer of Judges of the High Courts. The two eminent persons will be appointed by a collegium consisting of the Prime Minister, the CJI and the leader of Opposition in the lok Sabha. The top executive of the Union Ministry of law and Justice shall be the convener of the commission.
In the appointment of Judges by the collegium system of the Supreme Court which is in vogue for the last 20 years the executive had practically no role to play. It is felt in different quarters that with the new system, greater transparency can be ensured. This would also ensure fairness and impartiality as other two men of eminence nominated from distinguished walks of public life would also have say over the matter of appointment of Judges who have nothing to do with the judicial process and administration of justice. It does not appeal to reasons that Judges alone are the deciding authority / factor for clearing appointment of other Judges. India is perhaps the only country where judges make appointment of their prospective colleague judges. law is well-settled that one cannot be a Judge of his own cause. On the same analogy, how can the collegium of the Supreme Court will have final say regarding appointment of Judges without the participation of other distinguished persons of public life or any member from the executive and legislature which are other two organs of the State under the Constitution.
The Chief Justice of India although is in favour of the present practice of appointment of Judges by the collegium system and had said if there was any move against the present system, people’s faith in the judicial system would be shaken and that there should not be encroachment in the domain of judiciary, the fact is that the last decision always rests with the Government. Defending the collegium system, it has been stated that before the decision regarding appointment of Judges are taken, the matter was consulted prior hand at different levels like the Ministry of law, the Prime Minister’s Office and the President. In any view of the matter, it is now felt in different quarters that some changes in the system of appointment of Judges are absolutely necessary.
So far as appointment of Judges of High Court is concerned, there is a mechanism operating that the track record of District Judges with their character rolls and service records are taken into consideration by the present collegium of the Supreme Court plus the recommendation of the respective High Court. On the face of this, when a practicing lawyer is elevated to the bench as a Judge of the High Court, surprisingly nobody knows the criteria or the norms followed to consider his case for elevation. Even top executives of the State like the Governor and the Chief Minister are not properly convinced with the procedure regarding recommendation of a lawyer to be elevated to the bench as a High Court Judge.
This is hard truth after the collegium assumed to them the task of appointing Judge to higher courts way back in 1993. Therefore, it is high time norms were prescribed regarding length of practice of a lawyer in the Bar, his legal expertise, appearance in number of cases which are reported in national law journals like All India Reporter etc and other criteria like payment of income tax etc which may be adopted as the parameters before his name is cleared by the NJAC. These factors, if taken into consideration by the proposed commission, would bring greater transparency in the process of appointment of judges.
(The writer is a former Professor of law at the lal Bahadur Shastri National Academy of Administration, Mussoorie)