When the Supreme Court decided to call the National Judicial Appointments Commission (NJAC) system unconstitutional, it had a very strong reason to do so. When our constitution was drafted, it was drafted keeping in mind the democratic structure of the Country. And to make sure that the same was retained, amending the constitution to an extent where its basic structure would change was completely prohibited. This basic structure included protecting the fundamental rights of the citizens of the country. The supremacy of the Judiciary was another aspect of the basic structure of the Constitution. If you are not from a legal background then this entire thing must be sounding too hotchpotch to you. Let me explain and simplify each point here.
First and foremost – what are NJAC and Collegium Systems:
It started with the appointment of judges in higher courts. To be eligible to be appointed as a judge, you need to have certain qualifications. These qualifications include some kind of experience as say public prosecutor or holding a Government office for a particular tenure, clearing certain examinations and such. These qualifications make you eligible to become a lower court judge. To get promoted to higher courts, you need to have certain years of experience in lower courts.
Now, so far as the lower court judges’ appointment is concerned, it is quite sorted. But when it comes to the appointments of high courts and the Supreme court, the complications start. Constitution per se never had any provisions regarding the appointment of judges. A proper system called the Collegium System for the appointment of judges came into existence after the collective judgments of three different cases known as “The Three Judges Case”. The basic structure of the Collegium System constitutes a committee of five Judges for appointing a Supreme Court judge – Chief Justice of India and Four senior-most judges of the Supreme court, while a committee of three judges decides the appointment of High Court judges.
The interesting thing to notice is that nowhere constitution said that it would be unconstitutional to give the powers of appointment of judges to an external authority. The only constitutional provision regarding any judiciary provision was its supremacy. That was made a part of the Constitution so that the final authority to give judgments for cases should remain with the courts. That is how the Supreme Court became the final and binding authority and nobody could challenge its order. Thus the question of any new system coming into place for any internal decisions of the judiciary doesn’t make that measure unconstitutional in any manner whatsoever. Further, this system of appointment of judges became more of an internal understanding without any intervention by any outside authority.
Exactly how the Central Government felt too about the Collegium System. They said that the Collegium system has created an imperium in imperio (empire within an empire) within the Supreme Court. As a result of this, a new act called NJAC was proposed and passed in both the Houses of Parliament and the President gave his assent too. The NJAC act came into existence in April 2015. The basic function of the act was to regularise the appointment of judges through a balanced system whereby Judges and Civil society people alike will constitute a committee and decide the appointment of judges. This committee shall constitute the Chief Justice of India, two senior-most judges of India, The Union Minister of Law and Justice, and two eminent persons.
This is where the hell broke loose for the legal fraternity. As soon as they realized that the Government was to intervene with the appointment of judges, they felt insecure. The reasons are not too difficult to guess. It’s like, your internal men have the right to promote people. Your internal men decide who should get the position of a Particular High court or Supreme Court judge. And that authority is suddenly being shared by outsiders. Politicians will now have a say in the appointments. It is unfair to just blame the insecurity in this matter. Even ego played a huge role. You have an alternative system in place when you think that the first one is not fair/right/unable to do its job properly.
Now, you are the supreme most authority, and you are questioned for not doing your job properly – it won’t go down very well with anyone. As soon as the constitutionality of NJAC was challenged, a bench of the majority of the judges exercised their rights of being the Supreme Authority by calling NJAC unconstitutional. The reason was given that the civil society in India is not completely involved and to ensure that complete justice is delivered, the judiciary should be kept independent from other organs of the Government.
Fair enough. Our System is indeed corrupt or incapable. But has our judiciary stayed clean and away from corruption? Is it fair so far as the appointment of Judges is concerned? Are they efficient enough? If yes then why so many vacancies are there? Is there any dearth of qualified judges to be appointed as higher court judges or there are other graver issues and reasons?
NJAC was rejected. The good old collegium system was to continue. The judges further added in their judgment that the collegium system needs improvisation. It is in this regards the supreme court held a constitution bench hearing. And guess what did the Supreme Court decide? It decided to take public opinion for improvising the same. They came to this conclusion after lawyers from other parts of India wanted to be heard and give their opinion too. Now that is how irony facepalms. You have a problem with outsiders intervening in your system. And when you find yourself inefficient, you ask for a public referendum to decide on your internal system. What is the constitutional stand of public referendum again?
Personally, I am not in favor of NJAC. Nor am I too happy with the good old collegium system. But if I have to choose one, I would go with the latter. What we now need is a system that elects judges on the basis of their merit. Just like lower courts, higher courts should also have a system and procedures in place instead of/along with committees. Keeping the judiciary free from politics is the ideal thing, at least in the present scenario. And only a merit-based selection system can ensure a near-perfect system, if not a flawless one.
At the end of the day, no matter what improvising measures are incorporated, this entire issue has brought to light the insecurity and hurt the ego of the supposedly neutral and supreme authority of the country. Unconstitutionality? Don’t even talk about it. The recent development also reflects the incapability of the system to decide on a procedure. All we can hope for is something that’s sensible and fair that comes out at the end of this saga.