Union Law Minister Ravi Shankar Prasad recently made it a point to emphasise that the law ministry will not act as a mere post office when it comes to judicial appointments. This remark is significant, and the current government should focus on the participatory nature of a democratic government in judicial appointments. The central government should set right the problem of judicial appointments by establishing a National Judicial Appointments Commission (NJAC) which is an improvement over the one that was struck down by the Supreme Court in 2015.
This is important given the transformation in the role of the judiciary from an interpreter and enforcer of the law to a “good governance court”. With the increase in judicial activism, a void in the accountability of the judiciary has followed. In fact, the judiciary has actively shielded and insulated itself from executive or legislative interference post the ADM Jabalpur vs Shivakant Shukla case, and supersession of judges to the office of the chief justice of India.
This was also supported by the fact that successive coalition governments after 1984 could not take a tough stand against the said appropriation. A full majority government was formed in 2014, which introduced NJAC to overturn the method of judicial appointments. It is indicative of the long-standing tussle between the executive and the judiciary over judicial appointments.
Appointment of judges of the Supreme Court and high courts is envisaged under Articles 124(2) and 217(1) of the Constitution, respectively. Both these provisions provide for ‘consultation’ with the judiciary, chief justice of India in both cases and the chief justice of the high court in the case of high court judges. However, the entire debate hinges upon the interpretation of the word ‘consultation’. ‘Consultation’ has been defined and redefined in three landmark verdicts, namely First Judges’ case, Second Judges’ case, and Third Judges’ case.
In the First Judges’ case (1981), the Supreme Court held by a narrow majority (4:3) that the word ‘consultation’ under Articles 124(2) and 217(1) does not mean ‘concurrence’. This meant that the government had the final say in judicial appointments, and not the CJI.
In the Second Judges’ case, the Supreme Court changed its stance. It held that in the event of conflict between the President and the CJI with regard to appointments of judges, it was the CJI whose opinion would not only have primacy but would be determinative in the matter. This case marked the birth of the collegium system of appointment of judges. In the Third Judges’ case, under the special reference to the Supreme Court by the President, the court upheld the judgement of the Second Judges’ case and expanded the collegium to include the four senior-most judges along with the CJI.
This meant that not only primacy, but that the entire appointment process rested with the judiciary. It adversely affected the constitutional design of transparency, and this in turn meant lack of accountability and a democratic deficit that plagues the judiciary. As such, the lack of transparency has ignited fears of nepotism and elevation of judges based on personal relationships and past favours, instead of merit or seniority. With a view to rectify and readjust this imbalance, the NJAC was introduced by parliament in 2014.
The NJAC was a body that would have been comprised of the CJI, two senior judges, the law minister and two ‘eminent personalities’ appointed by the prime minister, the leader of the opposition and the CJI. The main contention was that veto was given to these two members of the commission. It was feared that it would erode the independence of the judiciary as these two members could be ‘eminent members’ or the law minister and any other ‘eminent member’. Thereafter, 10 months after it received the President’s assent, the NJAC was struck down as unconstitutional by the SC on the ground that the judiciary cannot risk being caught in a “web of indebtedness” to the government, which could be through the ‘eminent members.’
At this juncture, it is wise to recall the prophetic words of B R Ambedkar when he said in the Constituent Assembly: “With regard to the question of the concurrence of the chief justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgement. I personally feel no doubt that the chief justice is a very eminent, person. But, after all, the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have...”
This makes it clear that the founders of the Constitution did not intend to give final say to the CJI in judicial appointments. At the same time, independence of the judiciary also needs to be maintained. This could be achieved through an improved NJAC.
Keeping all technicalities the same as in the previous NJAC, the improved NJAC should consist of five members comprising the CJI, two senior judges, the law minister and one ‘eminent personality’ appointed by the prime minister, leader of opposition and the CJI. Further, rejection of a candidate should be possible only if at least three members oppose the same. Therefore, the power of veto would rest only with the judiciary. This does not erode independence of the judiciary but at the same time it ensures that two non-judicial members could bring in accountability in judicial appointments as any wrongdoing could possibly be highlighted in the media and the public domain which will act as an effective check.
Such a composition of NJAC underlines principles of democratic government as it ensures participation of not only the government but also of civil society. In fact, this view has been echoed by the National Commission to Review the Working of the Constitution (NCRWC), headed by former CJI MN Venkatachalaiah in 2002.
(The writer is a student at National Law School of India University, Bengaluru)