NATIONAL JUDICIAL APPOINTMENT COMMISSION OF INDIA: Dream or a Reality?

1.0 INTRODUCTION

Independence of Judiciary is vital for sustainable Democracy. Hence, it is of paramount importance that the Judiciary remains free from external influence and it does not face interference and or control from the other two organs of the Government, i.e. Executive and Legislature. As Democracy is well known by its expression, “For the People, Of the People & By the People.” So consequently discharge of functions by the Judiciary needs to remain free from fetters of political compulsions till our democracy and polity assumes further maturity.


Judiciary also needs to be insulated from Public pressure, Popular uprising, so that justice can be delivered without fear or favour with an Independent thought process of following due process of Law: this is undoubtedly in the interest of the Citizens and people at large.


When fundamental rights of the Citizens are violated; “We the people of India” have option to take recourse with our Judiciary & not usually seek justice from Legislatures or Executives. Hence savior of Democratic Rights of Citizens is certainly the Judiciary and not necessarily the other two organs of the Government.

Question is now how to address such a complex issue and maintain balance of power at the same time!



1.1 CURRENT SCENARIO

National Judicial Appointment Commission Act of 2014 was struck down as unconstitutional or ultra Vires to the Constitution by the Honourable Supreme Court of India in a five bench Judgment by a majority of 4:1 on 16th Oct 2015. On the other hand Collegium system was evolved out of a Judgment by nine Judges Bench. Hence, any more modification to the existing system preferably be addressed by a bigger bench & not smaller, is one thought process that needs deliberation.

National Judicial Appointment Commission (NJAC) Bill of 2014 was passed by Lok Sabha on 13th August 2014 and in a unique show of solidarity unlike recent times, Rajya Sabha passed it on the very next day on 14th August 2014. President, after due deliberations with his counsels gave accent to the Bill on 31st Dec 2014.

May be the date of passing the bill in Lok Sabha was not auspicious as many may comprehend!

Collegium system is being practiced for more than two decades since 1990s or popularly referred to as Judges selecting Judges, this have come under severe criticism in media and particularly social media mainly due to lack of transparency and non reflection of popular democratic mood prevailing in the country. There is no mention of Collegium system or any other such procedure of similar nature prescribed or described for any official appointments in the constitution of India or its successive amendments.


1.2 NJAC or National Judicial Appointment Commission

What it means: National Judicial Appointment Commission or NJAC in short was conceived to be of six member commission to appoint and transfer Judges of Supreme Court and High Court.

First member shall be the Chief Justice of Supreme Court who shall have primacy over the decisions. The other members are the two other senior most Judges of the Supreme Court, then Union Minister of Law & Justice and two more Eminent persons. Newly introduced two Eminent persons shall be nominated by the committee of Chief Justice of India, Prime Minister of India & Leader of the opposition or Leader of the largest political party in the Lok Sabha. Out of the two Eminent persons one person shall be from Scheduled caste / Scheduled Tribe / Other backward Class / Minority / Women.

Major drawbacks of NJAC where it’s members were in even numbers, thus in case of equal opinions it would be impossible to arrive at any conclusion. The number of members is small, apprehension of political interference looms large – the very cause for which Collegium was enacted by constitutional jurisprudence conferred in accordance with Article 141 of the constitution, defeats purpose.


1.3 OUR CONSTITUTION – The Supreme Law of the Land

Article 124(2) in The Constitution Of India 1949

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:

(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed rom his office in the manner provided in clause ( 4 )

Article 217(1) in The Constitution Of India 1949

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that

(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India

Judge can be removed by impeachment an act of Parliament in accordance with Article 124(4)



1.4 INDEPENDENCE OF JUDICIARY – a requisite for sustainable Democracy

Judiciary should be able to exercise Judicial Powers and without any fear or favour. That the Judicial members should not have any burden of present or future prejudices like future appointment by the Government of India and post retirement assignments. Judiciary should be able to exercise administration of Justice without any political influence or Popular Public opinion or pressure or prejudices. And follow the due process of law strictly in line with legal requirements laid down. Independence of Judiciary is in the interest of the Citizens and to establish faith for administration of Justice and its system in the minds of ordinary Citizens and popularize the number of law abiding populace for peace and prosperity of any nation.



1.5 COLLEGIUM SYSTEM merits and demerits

More than two decade old system evolved out of two landmark and famous judgments known as Second Judges case and Three Judges case. Collegium system was evolved out of a Judgment by nine bench and NJAC declared unconstitutional by a 5 Judges bench. Usually any modification to the existing system preferably is addressed by a bigger bench & not otherwise, so that may be a procedural lacuna identified here.


Collegium consists of Chief Justice of India and four senior most Judges of Supreme Court besides him to make it odd number of five. So in case of split Judgments it is easier to handle. If two judges out of five give adverse report then appointment & transfer is withheld. Collegiums for High Court are Chief Justice of the High Court and two senior most Judges do due diligence and recommend for appointment as judges of the High court. The shortlisted candidates are scrutinized by a Collegium of five senior-most judges of the apex court headed by Chief Justice of India before being cleared for appointment. The same Collegium of the apex court identifies serving judges and chief justices of high courts for transfer and elevation to the Supreme Court. The entire process of selection and appointment are handled in strict confidentiality.


The collegiums system thus is opaque as all appointments & transfers are secret matters and treated with extreme caution and confidentiality. This is one of the greatest disadvantages of Collegium system in terms of transparency. Transparency need not necessarily bring credibility but of course help the cause to a certain extent. Which High court Judge will be elevated to Supreme Court is the sole discretion of the Apex court collegium. Thus power is far from decentralization.



1.6 WHY NJAC ACT 2014 Held Unconstitutional

Supreme Court struck down on the ground that it violates the basic structure of the constitution and Parliament has got no power to alter the basic structure of the Constitution as spelt out in Kesavananda Bharati Vs State of Kerala (1973) vide recital. The basic structure of the constitution was violated as three organs of the Government was supposed to be ruled under the Doctrine of Separation of powers and its maintenance thereof of autonomy of the Judiciary as all the three organs need to remain independent and free from interference and control of each other.

Montesquieu’s pristine theory of Separation of power, mutual Cooperation amongst three organs of power is indispensable though.


Yet another disadvantage of NJAC is it is a six member committee and in case of tie of the decisions how it will be handled it is not known. Hence it is one of the Chief drawbacks of the NJAC system.



1.7 COUNTER ARGUMENTS

Doctrine of separation of powers are not strictly followed and maintained in our constitution evolved by our founding fathers. As for example President and Governors are empowered to grant pardons and commute for the convicts, say for example for life and death sentence of convicts: - a judicial decision. This itself tantamount to exercise of executive control over the Judiciary and it is an unusual obstacle in the Judicial function to deliver administration of justice. No absolute power to Indian parliament as all laws enacted by the Parliament & subsequently accented by the President who works in an executive capacity is also subject to Judicial review and our Parliament is not Sovereign unlike United Kingdom House of Lords!

No provision in Democracy can be subjected to the Tyranny of the unelected over the elected and not reflect the popular mood of the people of India.

More than transparency, credibility of the Judiciary is important for people to repose trust and faith in Justice System and in the process of administration of Justice so as to produce and popularize law abiding Citizens for peace and prosperity of the nation.

Collegiums system lacks transparency and the appointment and transfers of Judges are treated with extremely high degree of confidentiality and is truly secretive, therefore opaque and works in an air tight compartment, leave aside availability of information in public domain, it is not done and out of question.

That the Collegium system doesn’t find any mention in the Constitution of India and its subsequent amendments but cannot be ruled Unconstitutional or void Ab initio at the same time as interpretation the constitutional provisions if Article 141 or elsewhere needs to be debated.



1.8 JUDICIAL APPOINTMENT IN OTHER PROGRESSIVE COUNTRIES

1.8.1 France Judges Selection

In France, the Higher Council of the Judiciary Conseil Supérieur de la Magistrature - CSM Some attributions of the CSM are related to the appointment and discipline of judges and Public prosecutors. These rules are aimed at sheltering the judiciary from the risk of partisan influences. In France, the CSM assists the President of the Republic who under the Constitution has the mission to guarantee the independence of judicial authority. The President does not sit in the Higher Council of the Judiciary when it has to take decisions on disciplinary matters. The 2 benches in the Council are the Judges and the Public prosecutors, and they are composed of 16 members. Twelve of them are elected judges and 4 are appointed jointly by the President of the Republic, the President of the National Assembly, the President of the Senate and the General Assembly of the Council of the State.

Hence here the political influence and reflecting the popular mood of the people is in existence.



1.8.2 England Judges Selection

In England, where appointments to all but the highest level in the judiciary by a body called Judicial appointment Commission or JAC. Commissioners or the members are drawn from the judiciary, the legal profession, non-legally qualified judicial office holders and the public. All are recruited and appointed through open competition with the exception of three judicial members who are selected either by the Judges' Council or the Tribunals' Council. There are fifteen Commissioners, including the Chairman.

The JAC is an executive non-departmental public body, sponsored by the Ministry of Justice. JAC was set up in 2006 in order to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable.

The Appropriate Authority can accept or reject a recommendation, or ask the Commission to reconsider it. If the Appropriate Authority rejects a recommendation or asks for reconsideration, they must provide written reasons to the JAC.

This system is more independent and out of absolute control of polity and Crown.



1.8.3 United States Judges Selection

The Selection of Supreme Court Justices and Federal Judges are all appointed by the United States President, and must be confirmed by the U.S. Senate, including the justices of the U.S. Supreme Court.

The Federal Court Judges, Supreme Court justices, court of appeals judges, and district court judges etc., are also nominated by the President and confirmed by the United States Senate, as stated in the United States Constitution.

The process by which the chief justice of the Supreme Court is selected is the same as the initial selection of a judge or justice. The president nominates a person to serve as chief justice, the Senate Judiciary Committee reviews the nomination and makes a recommendation, and the Senate as a whole votes whether to accept the recommendation of the Judiciary Committee.

Here the involvement of the peoples representative i.e. The President & Senate is vital and not independent of it.



1.9 WHAT CAN BE DONE OR OPTIONS

Judicial reforms are progressing at a very slow pace in India and thus needs to hasten to keep pace with the fast changing scenario of polity, democracy and evolving society.


As a result of fall out of the NJAC act, out of many ideas one can be to increase the number of members of the commission to around fifteen or more and number should be odd and not even. The number of members of the Judicial commission or the modified Collegium to be in multiple of five and not divisible by two, in order to avoid tie in any decision making process.


All India Examination may be conducted for selection of the committee members for appointment and transfer of Judges in the model of IIT – JEE (Indian Institute of Technology – Joint Entrance Examination) or CAT for MBA Aspirants (Common admission test for Masters in Business Administration) or alike methodology. Two most successful and controversy free credible methodology is mentioned here by name as above, now equivalent similar model to be adopted with a different name. The examination may be conducted for Judiciary by Independent bodies like UPSC (Union Public Service Commission) also well known for transparency and credibility. Accordingly, for Judicial Service alone there need to be an Independent body which will work as Secretariat for the Collegium or the Commission also. It shall address recruitment of all Judges in all courts, appointment, transfers & other administrative issues involved with the judicial service. This body may also act as judicial service regulator in line with other regulatory bodies already in existence.


Appointment of Chief Justice of India: Multiple parameter system like Qualification, Experience, Service records for the last ten years, Age and other criteria shall be considered. In addition more parameters to be developed involving merit attributes, i.e. number of Judgments delivered, number of conciliatory decrees delivered, lack or availability of allegations or charges against the Judge, Competency level in measurable parameters etc. Weightage system shall define the seniority. Senior most Judge thus arrived at by systemic approach mechanism shall be recommended as Chief Justice of India by the Commission or the modified Collegium by majority votes.


Only Chief Justice of any HC and Judges of SC will qualify for Chief Justice of Supreme court of India to be appointed in consultation with the President of India by adopting the procedure as explained above. Other sub-ordinate appointments are to be ratified by the Chief Justice of India in consultation with President of India also after following due process.


President will have veto power to either accept or reject recommendations of Commission or Collegium in line with the philosophy and power to grant pardons in accordance with Article 72.

President of India shall also be empowered to consult the Cabinet committee of Judicial affairs comprising of Prime Minister and his Cabinet colleagues and leader of the largest opposition party in combined strength in both the houses of parliament in case of doubt and dispute. Minister of Law & Justice must be of cabinet rank. Here the Constitutionality part of the appointment and the legality of the enactment are adhered to. This will address the will of the people as President is also a person elected through Electoral College in accordance with the popular will of the people of India at any given duration of time. The Prime Minister and his Cabinet colleagues along with the leader of the largest opposition party representing the popular mandate is included in the decision making in situations of uncertainty. But they are to step in only in case of stalemate or logjam as a good governance initiative.


Appointment results are to be made available in the web site of Supreme Court of India. It also to be subject to RTI act so that if any Citizen wishes to know details of the procedure for appointment of any and all legal authorities deciding their fate; the same can be sought legally. This will solve the issue of transparency.


One third of the posts of the members of the committee may be reserved for women. The number of women members should not be less than one third but may be more so as not to disturb the final numbers as multiple of five and not divisible by two. Here no recommendation of any caste, creed, religion or minority has been done, because the author feel that women are only deprived class in India who being 50% of the population are unrepresented in most sphere of the society. Once Women’s position is uplifted and upgraded it shall truly represent the entire society. This is recommended as Women play a major role in making or breaking and evolving of the society silently. We need to pay heed to our major voice which is otherwise silent but expressive in the form of results in the society in delivering in the areas of literacy, growth, maturity and prosperity. All these progress parameters heavily depend on mothers and their upbringing. Here the famous quote of Swami Vivekananda prevails, “Can you better the condition of your women? Then there will be hope for your well-being. Otherwise you will remain as backward as you are now.”The reservation for women has to be gradually increased to touch the magical figure of 50% in ten to twenty years time frame.


Judges are to be subject to impeachment by act of parliament in accordance with Article 124(4) of the Constitution of India and in addition by the fifty percent of state assemblies with majority decision.


Remuneration to Judges to be suitably enhanced and post retirement benefits to be doubled or more and all members once selected and performed duty of any duration should be barred from assuming any position in the Government of India or in related establishments, post retirement. Judges retirement age may be enhanced to 67 years subject to mental and physical fitness. Judges life post retirement should be made well secured and fully paid for by the Government. This will help in removal of bias or prejudices from the Judicial system and enhance credibility.


Training Institutions for working Judges are to be modernized and upgraded to meet the International standard requirements following the most advanced democracies of the World. Judges should be allowed to publish papers in Journals and actively participate in Seminars and workshops. There needs to be free flow and exchange of ideas all across the National spectrum. Judges are also to be sent abroad in periodical manner to get themselves acquainted in the areas of development of Law across the Globe. This opportunity is currently missing in our system also it will act as motivation factor and lead to more job satisfaction, leading to healthy well informed atmosphere for dispensing justice.




2.0 CONCLUSION

The democracy if for the people and the elected representative should have some stake in all the decision making process in a healthy democracy to be successful. Its is not be called tyranny of the unelected over the elected in any system being part of true Democracy. The Democratic system must reflect the popular mood of the people at any given point of time but with caution. Hence people’s verdict and popular will cannot be entirely ignored.


While on the other hand the Government is the largest litigant in this country, can the Government be given opportunity of selecting Judges as it violates the rules of natural justice “Nemo Debet Esse Judex in Propriya Sua Causa.” No man can be judge in his own case.
Hence the dilemma, duality and ambiguity and cause of all confusions.


Therefore, Governmental control needs to be minimized without absolutely ignoring it and then given an opportunity to intervene only in case of doubt and dispute and not otherwise. So that collective wisdom of the electorate is used at the hour of need.



Thus Judicial reforms in this country is overdue and thus to be taken up in right earnest to see our democracy attaining maturity for a progressive and developed India.



#Jai Hind