WHAT OF INDEPENDENCE? How the National Judicial Appointments Committee impacts Judicial Independence

By Praharsh Johorey

Edited by Nandita Singh, Senior Editor, The Indian Economist

The Parliament’s hastily given approval of the Constitution (121^st) Amendment Bill, 2014 creating a National Judicial Appointment Committee (“NJAC”) has permanently transformed the manner in which judges are to be appointed and promoted to the Supreme Court and between High Courts; a seismic change from the previous ‘collegium’ system. The system as it existed prior to the acceptance of the bill was a widely criticised one, as it essentially allowed for judges to elect themselves, thereby creating a promotion and transfer system which demoted claims of establishing meritocracy, while being active proponents of secrecy and bias. And thus, the need for a new system was clearly established, which sought to ensure greater emphasis on claims of merit during promotion and transfer, while maintaining the independence of the judiciary from control of the executive and legislature.

Since Montesquieu’s notion of the importance of the separation of power between the three organs of governance; the Executive (In India, the President supported by the Cabinet of Ministers), the Legislature (The Lok and Rajya Sabha) and the Judiciary (All Public Courts, headed by the Supreme Court); the maintenance of the independence of the judiciary has been one of the pillars of a thriving democracy. The Supreme Court deliberated on the issue of the appointment of judges to the Supreme Court in three landmark judgements (known collectively as the ‘Three Judges’ Cases) wherein a collegium system was established, consisting of the Chief Justice of India and ultimately, four other judges of the SC, who would through consensus determine the judges to be appointed from various High Courts.

In the face of the aforementioned criticism, the NJAC was adopted by the newly elected parliament in a manner that leaves much to be questioned. The questions of the largest magnitude facing the committee remain the ones concerning the nature of its composition, and how it affects the greatest light of our democracy; an independent judiciary.

The NJAC has a proposed composition of two SC judges, the CJI, the Union Law Minister, and two eminent people who are to be determined by a committee comprising of the PM, the opposition leader and the CJI. From times dating back to debates in the Constituent Assembly, leading into modern day, it has been emphasised by the Court that the independence of the judiciary is the foundation upon which our democratic polity rests. [1] However, in a scenario post the adoption of the NJAC, this foundation remains shaken. The members of the committee contain in equal numbers members of the judiciary and the executive, allowing for members of the executive to exercise the same degree of control over the appointment of judges as members of the judiciary themselves.This drastic change leads to the question; what authority would an executive-leaning judiciary grant an absolute majority rule in the coming decade?

The answer, unfortunately, is resoundingly frightening.  If one is to remember the turmoil the judiciary underwent during the emergency ridden second term of Indira Gandhi, judges who have established political leanings are far less likely to allow for unbiased adjudication of issues that affect the hundreds of millions that the Supreme Court encompasses within the scope of its decisions.  A similar scenario is not unlikely in the reign of Narendra Modi. While he has effectively ensured the passage of most legislations in parliament through attaining a majority in the lower house, the sheer magnitude of the power granted to the executive in the NJAC ensures that any appointment to the judiciary cannot be free of the influence of the man behind one of India’s most historic election victories, who now seeks to consolidate his power for a ten year period. And thus, a situation may arise where judges of meritorious nature may not receive deserved promotions due to the vested interests of party politics in India, and the importance of short-term one-upmanship between involved parties. Further, it remains in the interest of the Executive to take active interest in the appointments, as a steady stream of support from the apex court may only tangibly benefit the policy implementation plans of the BJP government, on social as well as economic parameters.

Therefore, while there do exist safeguards such as the presence of two SC judges in the committee, along with the CJI, one cannot help reach the conclusion that the primacy of the opinion of the judiciary has been defeated with the NJAC. Questions regarding the constitutionality of this legislation will be brought before the Supreme Court, however, in the period that elapses until such time, a significant dent has been left in the independence of the judiciary as the drafters of our constitution envisioned it.