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Vexed problem, many proposals, but no consensus

Over the years, various bodies have proposed different solutions on the judicial appointments issue

Mayank Mishra & N Sundaresha Subramanian  |  New Delhi 

Vexed problem, many proposals, but no consensus

In one of its early moves, the National Democratic Alliance (NDA) government passed two Bills — National Judicial Appointments Commission and 99th Constitution Amendment — which it called critical to reforming the judiciary.

The first Act amended the Constitution to replace the method of appointment of judges by a collegium system with that of an independent commission, called the National Judicial Appointments Commission (NJAC). The composition of the NJAC would include: (i) the Chief Justice of India (CJI) as Chairperson (ii) two other senior most judges of the Supreme Court, (iii) the Union Law Minister, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.

The other Act laid down the processes in relation to such appointments. This was one of the few instances in which the government got the support of the Opposition with the Congress, which had first tabled the Bill in 2014, playing along.

Three days after the two laws got the President’s assent on December 31, 2014, former additional solicitor general of India and senior advocate of Supreme Court Bishwajit Bhattacharyya filed a petition challenging these. Fourteen others, including the Centre for Public Interest Litigation (CPIL) and Supreme Court Advocates on-record Association, joined him in challenging the order.

Not all applications were found meritorious. M L Sharma, who had filed before Bhattacharyya, got reprimanded for making baseless and scandalous allegations. “Having considered the content in the writ petition, we consider it to issue show cause notice to the petitioner (Sharma) why he should not be debarred from canvassing any PIL (public interest litigation) on account of irresponsible and scandalous allegations levelled by him in the petition,” the bench had said in an order in May.

But the five-member Constitution bench took up the others for hearing. “The NJAC was a disaster in as much as it would have eroded the independence of the judiciary and the democracy would have collapsed. If judiciary, executive and legislature toe each other’s line, that can give way to the worst form of tyranny,” said Bhattacharyya.

However, even the worst critics of the government move concede the collegium system, which came into practice in 1993, has its flaws. Over the decades, several high-level Commissions have examined this method of appointment of judges to the higher judiciary, according to a note by PRS Legislative Research. The Law Commission of 1987 suggested a structure with two representatives from the executive in a panel comprising the CJI and six other members of the judiciary.

In 2002, the National Commission to Review the Working of the Constitution introduced the concept of “one eminent person” to be part of a five-member panel comprising the CJI, Union law minister and two senior-most judges of the Supreme Court.

In 2005, the National Advisory Council (NAC) wanted representation of both the executive and the legislature. It suggested a seven-member panel in which CJI was the lone judicial member with the executive and legislature getting three representations each. In 2007, the second administrative reforms commission suggested a structure similar to the one proposed by NAC.

The petition filed by CPIL, the NGO led by Prashant Bhushan, prayed that the collegium system must be scrapped. CPIL said that a full-time judicial appointments commission, which is independent of the government as well as the judiciary, should be constituted. Such a body should work in a transparent and scientific manner by laying down the criterion for selection, advertising the vacancies and evaluating the applicants/nominees on a discernible basis on the criteria laid down, the NGO had suggested.

The five-judge Supreme Court bench heard the arguments during the summer vacation. The judgment, reserved on July 16, was delivered on the last working day before the apex court closed for Pooja vacation. In its 1,000-page judgment on Friday, the bench held that the executive involvement in appointment of judges impinged upon the independence of the judiciary. This violated the principle of separation of powers between the executive and judiciary, which is a basic feature of the Constitution, it held. Bhushan said, “The issue of judicial appointments has been a vexed problem. Initially, the power was with the government who only needed to consult the Chief Justice. This led to politically committed judges being appointed.”

The method of appointment of the Chief Justice of India, Supreme Court and High Court judges was laid down in the Constitution. The Constitution stated that the President shall make these appointments after consulting with the Chief Justice of India and other SC and HC judges as he considers necessary. In a note released after Friday’s judgment, PRS Legislative Research said, “Between the years 1982 and 1999, the issue of method of appointment of judges was examined and reinterpreted by the Supreme Court.”


Since then, a collegium, consisting of the CJI and four other senior most SC judges, made recommendations for persons to be appointed as SC and HC judges, to the President. The government’s power of interfering with such selection was restricted to sending the name of the proposed appointee back for reconsideration. If, however, the collegium reiterated its choice unanimously, the government would have to appoint that judge.

According to the provisions of NJAC, a six-member committee consisting of CJI, two judges, two eminent persons and Union law minister would appoint judges. The CJI’s additional power was limited to deciding the time and the venue of the meeting of the six-member committee. Senior lawyers of the apex court are of the view that the passage of NJAC Act was seen to be encroaching on the power judiciary. “There was no consensus on who that eminent persons would be. Whether they will be from the legal fraternity or from other areas was not clear,” said senior Supreme Court lawyer Jaideep Gupta.

Incidentally, the UK, South Africa and Australia follow the committee model of appointments of judges. In the UK, an eminent person from non-legal background chairs the committee. The idea of NJAC type structure dates back to the 1970s. But it finally took concrete shape in 2014 only to get quashed less than 10 months later. But it's still too premature to write an obituary on the structure itself. “The possibility of a broad-based NJAC is still there, provided there is far greater consultation and far greater consensus. The judiciary and the legal fraternity need to be fully taken on board. After all, the judiciary alone is the final watchdog of all constitutional values,” observed Gupta.

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First Published: Sat, October 17 2015. 00:36 IST
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