It would be premature to comment on the position the Supreme Court eventually takes on the matter of replacement of the collegium system with the NJAC. But the legislation concerned has shortcomings which will be a subject of intense scrutiny in the days to come
The Supreme Court is presently hearing a petition challenging the constitutional validity of the 99th Constitutional Amendment Bill, 2014, and the National Judicial Appointments Commission Bill, 2014. These two enactments have been challenged on two grounds. First, the NJAC Bill was passed before the constitutional amendment Bill and subsequently, it was also assented to by President Pranab Mukherjee. Therefore, the act has no constitutional validity. The point that has been made is that unless Article 124 is amended, the NJAC cannot be established. So, the NJAC Bill should have been passed only after Article 124 was amended. Second, the NJAC Bill infringes on judicial independence and, thereby, violates the basic structure of the Constitution.
The first ground involves a question of procedure of the Houses. Rule 66 of the lok Sabha says that a dependent Bill can be passed only when the original Bill is passed by both Houses and assented to by the President. But on a number of occasions, both such Bills were considered and passed at the same time by suspending the relevant rule. This is done, keeping in view the convenience of the Houses. But care is always taken to secure the President’s assent, first to the original Bill and then to the dependent Bill.
In the present case too, the NJAC Bill, which is depended on the constitutional amendment Bill, was passed along with the latter in accordance with past precedents. But this issue was not raised in the lok Sabha, and, therefore, no motion for suspending the relevant rule was put and adopted. In the Rajya Sabha, this question was raised by Mr K Parasaran, but a ruling from the chair did not clarify this issue. It may be a procedural irregularity under Article 122 and, therefore, not a ground for challenging the constitutional validity of the enactment.
The second ground cited in the petition is that these enactments take away judicial independence and this violate the basic structure of the Constitution. The observations of the five-judge Bench indicate that the court is taking a hard look quite independently from the collegium decision of the court.
The collegium decision of 1993 came against the background of politicisation of the selection of judges to the higher judiciary. But in the course of time, eminent judges themselves pointed out the defects and deficiencies of the collegium system — which in the course of 23 years of its existence, almost lost its credibility. There was a broad spectrum of public opinion in the country in favour of a transparent and rational system of selection of our judges to the higher levels of judiciary. The enactments under challenge are the products of a prolonged exercise in consensus building on this crucial issue. However, judicial independence has two aspects.
The first is that of a selection process which is independent and relatively free from the influence of the political executive. Relative, because total independence from the executive is not possible under any system.
The second is that functional independence of the judges is taken care of by the Constitution through provisions such as Article 124 (4), which says, “No judge can be removed by the executive except through an impeachment by Parliament.” Article 124(2) says, “No privileges, allowances, leave of absence or pension shall be altered to the disadvantage of the judges after their appointment.” Similarly, Article 202(3)(d) declares that the salaries allowances of High Court judges are expenditure charged on the consolidated funds.
An expenditure which is a charge on the consolidated fund is not required to be voted by the lok Sabha. Similarly, no discussion can take place in Parliament on the conduct of judges except when an impeachment motion is under discussion. The Constitution of India thus insulates the judiciary against any pressures from the executive and the legislature.
But the question is: What kind of a system will ensure the selection of men of merit and integrity, when the two enactments, which seek to establish a national commission for the appointment and transfer of judges, are examined objectivelyIJ One is struck by serious flaws which are present therein. One major flaw is the provision of a veto by two members of the commission. This provision can effectively neutralise the Chief Justice and the judges, which is fatal to the scheme of selection of judges.
Moreover, it is not clear why such a veto has been provided in the NJAC Act. Selection, for example, by two-thirds majority, may be a more rational and democratic method. It is possible that this provision of veto may be struck down by a Constitution Bench.
Another flaw is the vagueness of certain terms used in these enactments. ‘Eminent person’ is nowhere defined. The New Oxford English Dictionary defines the word ‘eminent’ as “a person famous and respected within a particular sphere or profession”. Eminence is achieved in a particular field of activity. This term needs to be defined in specific terms in order to enable the selection committee to select eminent persons who have the capacity to evaluate the merit of judges.
The NJAC Act suffers from excessive delegation, which is a serious legislative vice. The suitability of a person to be appointed as a judge of the apex court or of a High Court needs to be clearly laid down in the Act. This act leaves “other criteria other than ability and merit” to be laid down by the commission through regulations. Similarly, the Act leaves “other procedure and condition for selection and appointment of Supreme Court judges” to be laid down by the commission.
Such delegation of legislative power is clearly not permissible, because it is the duty of the legislature to clearly lay down criteria and conditions for selection etc of such high constitutional functionaries as judges of the Supreme Court. Yet another example of vagueness is to be found in the provision relating to the appointment of the Chief Justice. The words, “if he is considered fit to hold the office” are capable of creating tremendous confusion, as the Act nowhere lays down any criterion for the selection of a Chief Justice. The Supreme Court is bound to take note of these defects.
(The writer is a constitutional expert and former Secretary General of the lok Sabha)