The pre-1993 executive-led system of appointment of judges lost favour with people for trampling upon judicial independence. The post-1993 judiciary-led collegium system faced criticism for lack of transparency and accountability. The trust deficit continues to be a challenge with the new system under the national judicial appointments commission (NJAC) raising fears on both counts.

Though a legislative intervention was warranted in view of resistance by judges to systemic changes in the secretive collegium system, the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act, 2014 enacted to put in place the new system of appointment are being opposed even by the proponents of change as the enactments focus on merely replacing the all-judge collegium without providing for a clear blueprint to usher in transparency and accountability for which a change was mooted. This is apart from several provisions raising fears of compromising judicial independence once again.

True, there was a need to address the shortcomings of the collegium system which came in way of selection of good judges. But the problem could also have been tackled by providing for a statutory procedure mandating transparency in selection without going into ‘who’ selected judges. The argument that in other countries governments appointed judges was aptly rebutted long back by KT Shah who had stressed in the constituent assembly that judges appointed for life (like in other jurisdictions) were not bothered about post-retirement livelihood.

Undoubtedly, not just ‘how’ but also ‘who’ appoints judges is also important. But they are altogether two different aspects. And whether it would be better if judges have primacy or the government is a question which should have taken the back seat in view of past experience.
India has experimented with both. The executive remained in the driver’s seat for decades till the judiciary took over in 1993. Though it was a 1993 judicial order (the SCAOR case which is also known as the ‘Second Judges Case’) which scripted a takeover, it can hardly qualify as a coup by the judiciary.

In 1990 while the SCAOR case was pending consideration before the supreme court, the centre on its own had decided to give up in favour of the judiciary “to obviate the criticism of arbitrariness” on part of the executive. The then law minister Dinesh Goswami introduced a constitution amendment bill to provide for the constitution of a national judicial commission (NJC) comprising the chief justice of India (CJI) and two senior judges for appointment of judges to the supreme court. (NJC proposed for appointing HC judges also gave primacy to the judiciary with the panel comprising four judges along with the chief minister of the state concerned.)

Though the bill lapsed with the dissolution of the Lok Sabha, the 1993 judgment introduced a scheme similar to the one proposed for appointing supreme court judges. It came to be known as the collegium system.

The Object and Reasons appended to the 1990 bill only reflected the strong public opinion built over the years against executive selecting judges. People had witnessed executive trampling upon judicial independence by superseding inconvenient judges (in 1973 and 1977) while appointing the CJI and transferring high court judges against their will, as was the case with 16 judges in 1976.

Ironically, the judiciary also failed to discharge its duty as per the expectations of the people. In what emboldened the executive to wrest back power, the trust of the people in the collegium system gradually waned with the judiciary resisting demands for transparency and accountability. The supreme court registry did not shy away from even filing an appeal (which is still pending) against the CIC order directing disclosure of records pertaining to appointments.

The lack of transparency left no scope for stalling appointments of undeserving people as judges as the names came into public domain only after issuance of warrant of appointment by the president. The collegium system got a bad name with some CJIs insisting on appointment of tainted persons and some opposing deserving candidates due to personal rivalry or dislike.

Then came the issue of secrecy dampening chances of selecting from amongst the best. 

Though the judiciary gave enough reasons for a change, the fear of the selection process under NJAC also being opaque might not be totally unjustified in the absence of statutory provision(s) to enforce transparency. With the focus of the NJAC scheme being on ‘who’ should select judges, one would have to wait for the operationalisation of the scheme to see the extent of transparency. If fears turn out to be real, the scheme would be worse with the drawbacks of both the pre-1993 and post-1993 systems.

Opposition to the NJAC scheme even before it has taken off shows that mere removal of judges from the driver’s seat was not enough to restore the faith of the people in the system. The judiciary had committed a similar mistake after dismantling the pre-1993 system which gave primacy to the executive. The trust deficit can be best bridged with focus on law and not men who appoint judges.

The NJAC comprises three supreme court judges, including the CJI who would chair the body, the law minister and two eminent persons. In what could threaten judicial independence, the scheme provides for veto by any two members (which could stall appointment of persons unanimously recommended by all three judges); is silent on accountability, qualification or bar against ‘eminent persons’ accepting government posts for their three-year tenure; and makes the law ministry the power centre by making the law secretary the convenor of the commission.

The absence of provisions in the statute on several key aspects could be as much of a concern as any provision likely to threaten judicial independence. While talking on this aspect in the constituent assembly, M Ananthasayanam Ayyangar had stressed on the need to have specific provisions on key aspects concerning the judiciary to ensure that at any stage starting from appointment “the executive may have little or nothing to do”.

Though the NJAC Act permits the commission to frame regulations on procedure for selection, there is no specific provision mandating transparency in the appointment process vis-a-vis the general public and those vying or being considered for appointment as judges.

It is unlikely that the scheme in the absence of such provisions would be able to spot the best of talents as envisaged by the founding fathers of the constitution. “It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country,” Jawaharlal Nehru had said during the constituent assembly debate on appointment of judges to supreme court and high courts.

True, there is no bar on NJAC ushering in transparency or advertising vacancies as in the UK. But there was no such bar on the collegium either.

The Statement of Objects and Reasons appended to the bill referred to transparency twice. But it seemed to be in the context of non-judges participating in the appointment process. It also talks of accountability but the Act is silent on this aspect too.

The law is currently under scrutiny before the supreme court. But given the experience in the past, the government needs to realise that even if the law passes the judicial muster, it cannot just hang on with NJAC for long if it does not inspire confidence in the public.


(The column appears in the July 16-31, 2015 issue)