Critically examine the Supreme Court’s judgment on ‘National Judicial Appointment Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.
Indian Judiciary is said to be the most powerful judicial institution in the world. One of the reasons for it is the unique practice of ‘Judges appointing Judges’ by the collegium. The appointment of Judges in India has evolved by the Three Judges case.
- First Judge Case: The judgment said Executive has primacy over appointments since executive was responsible to the legislature. Constitution provided for Consolation, nothing more, nothing less.
- Second Judges’ case: Primacy to Judiciary in appointments was made as part of basic structure. Innovative Judicial interpretation concluded “consultation” as equal to “concurrence”. Collegiums system was put in place.
- Third Judges Case: Presidential reference under Article 143. Consolidation and evolution of guidelines for collegium system.
Due to the opaqueness and a culture of give and take there was criticism about the collegiums systems inefficiency. The government brought in the 99th Constitution Amendment Act, 2014 to introduce the National Judicial Appointment Commission (NJAC). Also a NJAC Act was passed describing the composition and the functioning of the NJAC.
The NJAC was supposed to compose of CJI, two senior most Supreme Court Judges, Law minister and two eminent persons selected by a committee.
The SC disposing of a batch of PIL struck down the 99th constitution Amendment Act. It declared the NJAC as unconstitutional and hence null and void.
It held that the ‘primacy of the judiciary’ which is part of basic structure would be violated by NJAC. Moreover, the judgment held that the Independence of judiciary might be endangered, allowing for executive interference. The judgment held that the involvement of law minister disturb the “Separation of powers” as conceived by the Constitution.
Hence, as per doctrine of revival, Collegium was resurrected. The SC also acknowledged that all was not well with the collegium system and proposed to bring in transparency and reform the system of appointments. The SC had drafted a Memorandum of Procedure (MOP) and sent it to the government for approval.
The SC striking down the NJAC has been criticized as judicial overreach. An Act which was passed with an overwhelming support of elected representatives has been struck down by the Judiciary. The government has been criticized for not giving constitutional status to the NJAC composition and procedure. Giving them only statutory status meant that they could have been altered by ordinary legislative majority. The government’s silence regarding the proposed Memorandum of Procedure (MOP) for collegium system has also caused disquiet.
The independence of judiciary is paramount to the survival of Indian democracy. The judiciary is often the tool of last resort for citizens and its reputation should be held high. The government and judiciary should co-operate to put in place a transparent, fair and efficient appointment process so as to quickly fill in the ever growing vacancies and glaring deficiencies of the collegium system. Judicial appointments are not an end in themselves but a means for effective and efficient justice delivery.
Post Script:
The unprecedented press conference by the four senior most judges has raised eyebrows across the nation.
The issues highlighted are pertaining to
a) Silence of government regarding the MOP and
b) Alleged selective allocation of the benches in an arbitrary and illogical manner by the “Master of the roster” the CJI himself for sensitive cases which have enormous implications.
These have brought the focus on the sorry state of affairs in the judicial system. Judges too are humans malleable to the vicissitudes of circumstances. It is prudent to remember that, “power corrupts and absolute power corrupts absolutely”.