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. In 1993, Supreme Court after holding that the independence of the judiciary which was part of the basic structure of the Constitution was being compromised by the government primacy in judicial appointments wrested the power of judicial appointments to the judiciary itself by a novel interpretation of the word "consultation".
The Court effectively directed that henceforth appointments of judges of High Courts and Supreme Court would be made by collegium of five/three senior judges of the supreme court who would consult the government in the matter. The government’s power of interfering with such selection by the judges 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.
Nepotism vs Transparency
The collegium system undoubtedly brought in greater independence of the judiciary. But it also had its own problems. The appointments through this system were also made in a totally non-transparent and often nepotistic manner.
The National Judicial Appointments Commission was introduced by the government in an attempt to wrest back some control over the selection of judges. Through this, it was proposed that an appointments commission consisting of the law ministers, two “eminent” persons (selected by prime minister, leader of opposition and chief justice of India) along with three senior judges of the Supreme Court would select judges.
In this Commission any two persons could veto any appointment. Also the secretariat of this Commission would be with the law ministry. However there was no provision of transparency or any rational basis of selection.
Constitutional validity
The constitutional validity of the NJAC was challenged by several bodies and groups on the ground that it would dilute the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments. In the petition filed by the Centre for Public Interest Litigation it was also prayed that the collegium system must be scrapped as well and a full-time judicial appointments commission should be constituted to select judges which is independent of the government as well as the judiciary and which works 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.
By its judgment the court has struck down the NJAC on the ground that by giving the government a substantial say in the appointments of judges, the NJAC would compromise the independence of the judiciary. The Court has fixed the case for further hearing on 3rd November to discuss the improvements that could be made in the working of the collegium system.
This judgment is welcome, particularly as it comes at a time when the government is seeking to control various independent accountability institutions. It is extremely important in the present climate, where there is a serious attack on diversity, dissent and freedom of speech at the hands of the ruling party and the government, that the independence of an important institution like the judiciary remains untouched.
However, it must be remembered that the independence of the judiciary neither means independence from accountability nor does it mean that judges must appoint judges. Among the many reforms needed in the judiciary, are full-time and independent institutions for selecting judges as well as receiving complaints and taking action against judges. One hopes that this decision by the Supreme Court would act as a catalyst to bring about these important reforms.
Advocate Prashant Bhushan, who argued the case in the Supreme Court against the NJAC on behalf of the Centre for Public Interest Litigation, is the convenor of the Campaign for Judicial Accountability & Reform (CJAR).
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The Court effectively directed that henceforth appointments of judges of High Courts and Supreme Court would be made by collegium of five/three senior judges of the supreme court who would consult the government in the matter. The government’s power of interfering with such selection by the judges 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.
Nepotism vs Transparency
The collegium system undoubtedly brought in greater independence of the judiciary. But it also had its own problems. The appointments through this system were also made in a totally non-transparent and often nepotistic manner.
The National Judicial Appointments Commission was introduced by the government in an attempt to wrest back some control over the selection of judges. Through this, it was proposed that an appointments commission consisting of the law ministers, two “eminent” persons (selected by prime minister, leader of opposition and chief justice of India) along with three senior judges of the Supreme Court would select judges.
In this Commission any two persons could veto any appointment. Also the secretariat of this Commission would be with the law ministry. However there was no provision of transparency or any rational basis of selection.
Constitutional validity
The constitutional validity of the NJAC was challenged by several bodies and groups on the ground that it would dilute the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments. In the petition filed by the Centre for Public Interest Litigation it was also prayed that the collegium system must be scrapped as well and a full-time judicial appointments commission should be constituted to select judges which is independent of the government as well as the judiciary and which works 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.
By its judgment the court has struck down the NJAC on the ground that by giving the government a substantial say in the appointments of judges, the NJAC would compromise the independence of the judiciary. The Court has fixed the case for further hearing on 3rd November to discuss the improvements that could be made in the working of the collegium system.
This judgment is welcome, particularly as it comes at a time when the government is seeking to control various independent accountability institutions. It is extremely important in the present climate, where there is a serious attack on diversity, dissent and freedom of speech at the hands of the ruling party and the government, that the independence of an important institution like the judiciary remains untouched.
However, it must be remembered that the independence of the judiciary neither means independence from accountability nor does it mean that judges must appoint judges. Among the many reforms needed in the judiciary, are full-time and independent institutions for selecting judges as well as receiving complaints and taking action against judges. One hopes that this decision by the Supreme Court would act as a catalyst to bring about these important reforms.
Advocate Prashant Bhushan, who argued the case in the Supreme Court against the NJAC on behalf of the Centre for Public Interest Litigation, is the convenor of the Campaign for Judicial Accountability & Reform (CJAR).
