Eminent persons hold key to NJAC

Bharat Desai & Balraj K. Sidhu

The marathon hearings before the five-judge Constitution Bench of the Supreme Court on validity of the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 has come to an end. The Bench, headed by Justice Kehar, has now reserved its verdict. Looking at the gravity of the legal challenge to these two legislations and the fact that all higher judicial appointments have come to be frozen, the Bench is expected to take a concerted view in the coming days. The verdict is slated to become a milestone in the legal annals of India.  

The arguments put forward by the Attorney-General (AG) Mukul Rohatgi as well as the lawyers representing the multiple petitioners  seem to have opened up a Pandora's box. They have placed under the scanner issues of legitimacy and relevance of the two- decade old maligned collegium system. The gruelling process of hearing, acerbic legal arguments, searching questions posed by the judges and equally strong defence put up by the AG provided an unprecedented cerebral show. It has generated good fodder for connoisseurs of advanced study on courts and tribunals. The final view that the five learned judges will take is set to decide the future of the Indian judiciary. The courtroom debate has brought to the fore not only serious flaws of the collegium system but also the simmering  turf war between the judiciary and the executive. Let us examine salient facets of the issues at stake as well as the likely scenario when the Court decides on legality of both the statutes  that have attained the Presidential assent.  

The composition of the NJAC (three judicial members, the Law Minister and two eminent persons) has stirred the hornets' nest that it will tinker with the “basic structure” of the Constitution. Notwithstanding the formidable presence of the Chief Justice and two other senior-most Supreme Court judges in the NJAC, the challenge has been used to create a fear psychosis that all hell will break loose with the presence of these three non-judicial members (the law minister and two  eminent persons) would erode the independence of the judiciary. The term “basic structure” is the Supreme Court's own invention and cannot be seen as cast in stone. Moreover, the phrase “independence of judiciary” is not defined in the Constitution but interpreted by the Court in various judgments, especially the three Judges cases. Still the issue merits attention on a larger scale since the independence of judiciary needs to be ensured right from the court of first instance and not merely at the highest level. 

Quest for transparency 

In an unprecedented assault on the collegium system, the AG contended that it not only failed to deliver in terms of the quality of judges but also the entire process has been shrouded in secrecy. In demystifying the two-decades old practice of judges appointing other judges, the AG described this in a crude layman’s language as: “You scratch my back, I will scratch yours”.  It is this status quo that is at stake. There is an earthy wisdom in the ancient adage that old must pave way for the new. As the courts and tribunals are human institutions, they are not infallible. They are a part of the society, an essential feature of the democratic edifice and run at great public expense. Hence they need to march with the changing times to provide a robust dispute settlement forum for changing societal needs and need not abhor transparency. The NJAC could provide the best-possible transparent mechanism wherein one government representative (law minister) and two “eminent persons” will be present. We need not split hair to debate as to who is “'eminent”.     

Need for scholarship in judiciary      

It is also high time we abandoned the conventional shibboleth that only judges can appoint the judges. Ironically, several arguments before the Constitution Bench questioned the need for inclusion of 'lay' persons (eminent persons) in the NJAC. Such derisory attitudes can not diminish significance for induction of such persons as there are variations in judicial selections around the world. The NJAC mechanism for selection of eminent persons provides for a committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition. Nothing can be more reassuring than this. Meanwhile, it is also the need of the hour to challenge the outdated notion that only judges or lawyers need to be elevated to the higher judiciary. Our judiciary thrives on the basis of reservoir of knowledge generated by legal scholars. Ironically, we have not yet reached a stage where a professor of law is elevated (alike a practising lawyer) to the higher judiciary under “distinguished jurist” criteria. Legal scholars have been kept out of such direct judicial appointments, including in Indian nomination for a judge of the International Court of Justice.  It is time to atone and the NJAC can best rectify the shortcoming. In fact, selection of a legal scholar as an eminent person can be the first step for their long-cherished elevation to the higher judiciary. 

 The NJAC has already sailed with flying colours through all the legislative stages and notified in the official gazette. Some 20 states have already ratified the 99th Amendment Act and others may be on the anvil. It could well be regarded as will of the people reflected through their elected representatives. Does it suffer from any legal infirmity as regards so-called lack of 'primacy' for judges in appointing judges? It would be a grave error to construe such intention of the framers of the Constitution. The proceeding before the five-judge bench has seen sparks with each side trying to protect its own turf. It appears; the Court could end up doing the tightrope walk. Since change is the law of life, it applies to human institutions like courts and tribunals too.

 There seem to be consensus across the political spectrum on the NJAC. It could be further strengthened. Even in the unlikely scenario of the Court striking down the 99th Amendment and the NJAC Act, the collegium system seems to have has reached the dead end. It would be prudent if the Court immerses itself in the democratic spirit, widens horizons with a mechanism comprising three non-judicial members, and lays down a framework that would ensure that judges of “ability and integrity” are chosen by NJAC. The Supreme Court,  as a creature of the Constitution that the People of India have given to themselves, is set to face the litmus test in marching with changing needs of painfully transforming India. 

 — Bharat Desai is Jawaharlal Nehru Chair at Centre for International Legal Studies, JNU, & Chairman of Centre for Advanced Study on Courts & Tribunals (CASCT); Balraj K Sidhu is Executive Director of CASCT