R Jagannathan

Firstpost.com

India's politicians, in an extraordinary show of independence and political maturity on Thursday, corrected an imbalance in the system of selecting and appointing judges to the higher courts by approving a constitutional amendment to create a National Judicial Appointments Commission (NJAC). If 15 state legislatures also pass the constitutional amendments, the opaque collegium system of appointing judges will be history.

While the two bills to give effect to the creation of the NJAC were always a shoo-in in the Lok Sabha given the NDA's majority, the fact that the Rajya Sabha too waved the bills through without dissent (and nil votes against) shows how acutely all politicians from almost all parties felt about it. While one bill sought to create the NJAC, the other one was a constitutional amendment bill to give the NJAC statutory status.

The constitutional amendment bill, once passed by the requisite number of state legislatures, will ensure longevity to the NJAC since it would then require another constitutional amendment to tinker with it. While some senior lawyers like Kapil Sibal and Fali Nariman are already muttering darkly about challenging the bills and seeking a judicial review, the intent of parliament is clear: the judiciary cannot appropriate the whole judges appointment process and defeat the original intent of the constitution’s makers.

The constitution clearly says that the executive will appoint judges after consulting the judiciary. Articles 124 and 217 are the relevant laws on the appointment of judges.

Article 124, inter alia, says:

“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 65 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.” (emphasis mine).

Article 217 says, inter alia: “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….”.

The constitution is clear that the executive appoints judges in consultation with the judiciary. Not the other way around.

In 1993, the Supreme Court reversed the process by creating the collegium system in which judges would appoint judges and the government could merely object to their nominations. But the collegium could still go ahead with its decision. This usurpation of power is unprecedented in the history of constitutional India. It is to end this usurpation that the NJAC bills were enacted.

There are good objections and bad for how the NJAC bills were formulated. The objections include the following:

One, the judiciary was not consulted. The simple counter to this charge is this: when the purpose of the new law is to end something that was never intended in the constitution, and the current CJI has openly defended the collegium system, what is the purpose of consultation? The powers of parliament to legislate and amend the constitution are paramount. The Supreme Court will get its chance to confirm the law's constitutional validity if it finds any infirmity in it.

Two, the law has been changed with undue haste. This is certainly true. In theory, the government could have gone through an elaborate process of consultation. But the fact is law changes have been suggested for years now. Even the author of the 1993 judgment which created the collegiums, the last CJI JS Verma, admitted that the collegiums system had failed. And it is the government's job to judge the political climate for what laws will pass and when. The fact that no major political party had serious issues with the NJAC bills shows that the laws have widespread acceptance among legislators.

Three, the NJAC diminishes the judiciary's role in the appointment of judges. This is not quite true. The new law says that judges will be chosen or transferred by a six-member NJAC. Of the six, three would be the CJI and two senior-most Supreme Court judges, two would be undefined “eminent persons”, and one would be the Law Minister. If two of the members object to a judge’s nomination or elevation, the matter would end there. The two eminent persons are themselves to be nominated by a three-member team – the CJI, the PM and the Leader of the Opposition (or leader of the single largest party in the Lok Sabha).

If half the NJAC members are judges, how is it tantamount to reducing the role of the judiciary in judicial appointments? The two-member veto can, of course, stop the judges from getting their choices in, but the reverse could also be true: two judges, or two politicians, or two eminent persons, or a combination of any two members of NJAC could hold a veto. If relationships in the NJAC are frayed, there could be deadlock, but the fact is no one can shove a judge down anyone’s throat. The judiciary’s role is not diminished; it is being counter-balanced by giving the executive and politicians some say. This was anyway the original intent of article 124 – duly modified to widen the process of selection.

It is worth noting that in the US, judge selection is entirely a political process (existing judges have no say) and in Britain (for England and Wales), the 15-member Judicial Appointments Commission has 15 members, among whom only five are judges. The chairman of the JAC is a lay person, and not a judge.

In contrast, in the Indian NJAC, the CJI is the head. There is no way anyone can say the new law diminishes the judiciary.

Four, it is wrong to give the executive (or politicians) a voice in judicial appointments. As the US and UK examples show, globally it is not judges who appoint judges. Moreover, democracy means laws are made by elected representatives, and not judges. Judges only have to interpret the laws and check if they impinge on the basic freedoms guaranteed by the constitution. In recent years, judges have been foraying into everything, including policy (as in the 2G judgment, when the judges said natural resources can only be sold through auctions), due to the general loss of faith in politicians. But voters elect the same politicians. It cannot be any job of the judiciary to thwart the people’s will. The will of the people means the right to change the laws – as long as they are not in contravention of the basic features of the constitution.

It could be that the composition of the NJAC could be improved, or that some features (like the two-member veto) could be problematic. But we will know this only when the law is implemented – just as we discovered the flaws in the collegium system only after 15-20 years of operation.

The NJAC may not be the best thing to happen to judicial appointments, but it is a darn sight better than the opaque collegium system. We can fix the warts once they are visible. Parliament can always fix what is broken, but right now it is the collegium system that is broken. The NJAC ain’t broke.

The writer is editor-in-chief, digital and publishing, Network18 Group