India: National Judicial Accountability Commission (NJAC) - To Be Or Not To Be!!!

INTRODUCTION

National Judicial Accountability Commission (NJAC) and the National Judicial Accountability Commission Act (hereinafter referred to as "The Act") is at present the most debated political judicial topic. The challenge to the Act in the Hon'ble Supreme Court of India is gathering the attention of every aware person, intelligentsia, law student, legal professionals as the same will decide the ultimate authority with whom the appointment of Judges to the Higher Judiciary vests. Arguably, the matter which at present is being heard in the Hon'ble Supreme Court is also being compared to as the Kesvanand Bharti vs. State of Kerala¹ case as It will also seal oft debated issue over the supremacy of Judiciary or Executive in appointment of Judges in the Higher Judiciary.

When the appointment of judges across is taken into consideration what is perceived is that in some country like the United States, the President has the say in appointment. In United Kingdom, the system by far is very merit oriented because in order to become the judge there is an open competition that avoids kith and kin syndrome which is largely prevalent in India The article inter alia throws light on the constitutional provision with respect to appointment of judges, the global perspective of appointment of judges, evolution of collegiums system and its notable flaws, evolution of NJAC, the Act, salient feature in the Act.

THE CONSTITUTIONAL PROVISIONS WITH REGARD TO APPOINTMENT OF JUDGES IN THE HON'BLE SUPREME COURT AND THE HIGH COURT.

This section in brief will throw light on important constitutional provision dealing with the appointment of judges in India. Article 124² deals with the appointment of Supreme Court judges. Article 124 (2) of the Constitution of India³ mentions about the appointment of Supreme Court Judges. Article 217 deals with appointment of High Court Judges.

PROCEDURE OF APPOINTMENT OF JUDGES IN OTHER COUNTRIES

This section of the Article will throw light on the manner of appointment of Judges in some other Countries.

(A) United States:-

Before deliberating as to the manner of appointment of Judges it is imperative to give some back ground regarding the mechanism of judiciary as prevalent in the States. The system of court in United States is referred to as dual court system meaning thereby that both state and federal systems have their own set of courts. There are 51 separate sets of courts in United States; i.e. one for each state and one for the Federal Government. Federal court is further categorized into three level; a) The Supreme Court; b) The Circuit Court of Appeals and the District Court. The Supreme Court is the highest court in the federal judiciary. Section II Article II of the United States Constitution reads as⁴ :-

The President..., nominate, and by and with the advice and consent of the Senate, shall, ......judges of the Supreme Court, and all other officers of the United States shall appoint judges of the Supreme Court, and all other officers of the United States,

Interestingly, there is no statutory qualification with regard to person being judge in the Supreme Court. Generally, nominees need to have been admitted to the practice of law for at least 10 years. Pertinently, there is no rule where only a practising advocate can become judge. There are examples where a Academician (professor of law), have also been appointed as judge. At present out of one judge in U.S Supreme Court, there is one professor of law who is currently serving as judge in the U.S Supreme Court.⁵ Therefore, as far as appointment of judges in the United States is concerned, the authority vests with the U.S President and the Senate and there is no colleguim system prevalent for appointing the judges.

(B) United Kingdom

The Judges in United Kingdom are appointed on the basis of the recommendation made by the independent Judicial Appointments Commission (JAC). Quite interestingly all appointments are made on the basis of open competition. Thus there is no kith and kin syndrome prevalent in the appointment of Judges in the United Kingdom. JAC is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland. Its an executive non –departmental public body, sponsored by Ministry Of Justice.⁶ JAC derives its source from Constitutional Reforms Act and it consists of 15 members. The judicial appointment and other details are contained in Schedule 14 to the CRA as amended by the Crimes and Courts Act, 2013.

(C) Canada:-

In Canada, the Supreme Court consists of the Chief Justice and 8 other associate judges. The Constitution of Canada empowers the Governor General to appoint the Supreme Court judges. In common practice, it is the advice of the Prime Minister upon which the judges are appointed. Furthermore, the Minister of Justice shortlist candidates with input from provincial law societies. Moreover, Canada does take into account regional representation while making appointment of Judges. In order to be appointed as judge the candidates must have been a member of provincial or territorial law societies for at least 10 years⁷.

Thus, interestingly, what has evolved by having a glimpse of three countries of the world that in none of the three countries there exists a collegium system of appointment of judges.

THE COLLEGIUM SYSTEM IN INDIA : ITS EVOLUTION AND NOTABLE FLAWS

The evolution of NJAC dates back to the period when criticism started featuring regularly regarding the collegium system of appointment. Interestingly, the word "collegium" is nowhere mentioned in the Constitution of India. The evolution of Collegium system has its genesis in its three judgments which is also referred to as the "Three Judges Case." In the First Judges Case⁸, the Hon'ble Supreme Court held that "the primacy of the CJI recommendation to the President can be refused for cogent reasons." Thus, the first judges case gave the supremacy of executive over the judiciary in the appointment and transfer of the judges. Article 124 (2) was interpreted by the Hon'ble Supreme Court by its 9 judge bench in the case of Supreme Court Advocates-on Record Association v. Union of India, (1993)4 SCC441, also commonly referred to as Second Judges case to mean that the opinion and satisfaction of Hon'ble Chief Justice of India will have primacy in the matter of all judicial appointments. Additionally, the Hon'ble Court held that the Hon'ble Chief Justice views was not the sole view but the same had to be on the basis of views formed with at least two of the senior most judges of the Supreme Court. Therefore, in principle, the evolution of Collegium system of appointment started with the decision of Supreme Court in Second Judge case.⁹

The ambiguity with regard to judicial appointment was not settled clearly and the judgment as pronounced in the second judges case saw dissent in itself. Hon'ble Justice Verma wrote the majority judgment on behalf of four other Judges. Moreover, individual judgment was authored by Hon'ble Justice Pandian and Justice Kuldeep Singh though supporting the majority view.

Justice A.M. Ahmadi took the dissenting view¹⁰. The ambiguity resulted the then president K.R. Naryanan to refer the matter for Presidential reference. Subsequently, in 1998, in Re Presidential Reference¹¹ which is also referred to as the third judges case in response to third opinion¹² opined that The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior-most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.

Therefore, a march was made from two judges consultation and opinion as said by the Apex Court in second judges case to the consultation with four senior most judges of the Supreme Court. Thus, the evolution of collegium system of appointment dates back to second judges cases and has been further streamlined in third judges cases i.e. in Re Presidential reference case. Interestingly, the Apex Court has clearly outst the supremacy of executive in making any appointments in Higher Judiciary and has kept the ball in its own court.

As no system can be full proof, so was the case with the collegium system of judicial appointment. This system has been criticized as being biased, lacking transparency, marred in controversy, having kith and kin syndrome and at times resulting in quid pro quo.

One of the startling revelation which came against the collegium system that surprised the nook and corner of the educated intelligentsia and caused ruckus in the legal circle was when the alleged report with respect to then Chief Justice of Gujarat High Court, Justice Bhaskar Bhattacharya, surfaced. It is alleged that Justice Bhattacharya was not elevated to Hon'ble Supreme Court¹³ because he objected to the elevation of then Chief Justice Atmas Kabir sister to judgeship of Calcutta High Court. The Learned Attorney General making his submission before the Hon'ble Supreme Court regarding the challenge to the NJAC Act gave this example and strongly submitted that the collegium system must be scrapped¹⁴.

EVOLUTION OF NATIONAL JUDICIAL ACCOUNTABILITY COMMISSION ACT: PROVISIONS, AND OTHER FEATURES

The National Judicial Accountability Commission Act (hereinafter referred to as the "Act") was passed by the Lok Sabha on 13th August, 2014 and the Rajya Sabha on 14th August, 2014. Since the Act involved constitutional Amendment, hence ratification was needed by the States. Pursuant to the ratification by the majority of the States, the president gave the assent to the Act on 31st December, 2014 and the Act has been notified to come into force from 13th April, 2015. The Constitution Ninety Ninth Amendment Act provides for the composition and the functions of the NJAC. The preamble of the Act reads as An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.

As a result of the Constitutional Amendment, Article 124 (A)¹⁵ has been inserted and it deals with the composition of NJAC. The members of NJAC will be consisting of a) CJI, b) two senior most judges of the Supreme Court, Union Minister of Law and Justice who will be ex-offocio member and there will be two eminent members who will be nominated by the Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition. Strangely, the composition also states that out of the one eminent persons one persons will be nominated amongst the SCs, ST's and OBC community. Article 124 (B) gives the Commission the Constitutional Status.

Section 11 of the Act gives the rule making power to the Commission. The bone of contention and entire challenge to the Act rests mainly on the aspect that the amendment tampers the basic structure doctrine as propounded by the Hon'ble Supreme Court in land mark Kesavananda Bharti case and at the same time the interference of executive and political parties in the appointment of Judges. Section 5 of the deals with the procedure for selection of judge to the Supreme Court and it states that the senior most judge of the Supreme Court will be appointed as the Chief Justice of India. As per Section 5 (2) the commission shall recommend the name of appointment of Judges to the Supreme Court amongst persons who are eligible for appointment on the basis of the merit, ability and other criteria of suitability as per 124 (3) of the Constitution of India. Interestingly, the provision also states of veto power in case of disagreement of two members. The said Section under 5 (2) states as under :-

Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.

(IV) Potential criticism of the Act and the Challenge made thereto.

As reiterated above, the main ground of challenge to the Act which has been made before the Hon'ble Supreme Court is that the amendment tampers with the basic structure doctrine and it will undermine the power of judiciary. Furthermore, the active involvement of Law Minister in the functioning of NJAC and sending details as to the vacancies in the Higher Judiciary there can be situation when the Law Minister will be involved in both the process i.e. the functioning of the NJAC and internal functioning. As it is said that power corrupts and absolute power corrupts absolutely.

As regards the composition of the Commission itself, a lot of debate has taken place that the same will also not be full proof as nothing specific is mentioned about eminent person. Moreover, the introduction of quota will once again result in balkanization of the commission itself as the concerned member will try to cherish the cause of particular community and strata to which he belongs. Till date the higher judiciary has been immune from any reservation but the Govt. In order to appease has tried to indirectly introduce reservation in the judiciary.

Furthermore, Section 13¹⁶ of the Act itself is prone to misuse. It is to be noted that Sub-ordinate legislation does not strictly follow the uniform standard of review by Parliament and the same may vary depending on the terms of the statute vesting such power. Generally however, statutes require that drafted rules be laid before both houses, and changes may be made by the parliament within 30 days of such laying (resembling Section 13 of the NJAC Act). Rarely, is the operationalization of such rules subject to prior parliamentary approval. Sub-ordinate legislation drafted by judicial bodies under the Indian constitution are qualitatively distinct, and are not subject to similar oversight.

In this regard it is to be noted that as per Article 145 and 229, the rule making power are bestowed to the Supreme Court and the High Court respectively.

Appositely, the Learned Senior Counsel appearing before the Constitution bench of the Apex Court has made submission before the bench that the impugned act violates the basic structure of the Constitution as the same undermines the independence of judiciary as the very act itself undermines the role of the Hon'ble Chief Justice in selection of the judges to the Higher Judiciary and therefore, the act must be declared as ultra vires.

CONCLUSIONS

There was some issues with the collegium system of appointment was one of the passing remark by Hon'ble Justice Khehar who is presiding the Constitution bench which is presently hearing the challenge to the Act. Whether the current replacement is an effective mechanism is too early to be judged at this stage but one thing is sure that there has been unhealthy practices which has been followed as a result of Collegium system of appointment. There has been published media reports where some of the judges were not appointed to Hon'ble Supreme Court because the Hon'ble Chief Justice did not approve his appointment because of the issues with the particular judge. The collegium system was noted for its very essential characteristic that there was no role of executive or there was no political interference in the composition of the Collegium as no one from the ruling party or the opposition was associated in any manner in the appointment of judges. Needless to say when the legislature is tainted, there are bottle necks and red tapism in the bureaucracy the common man looks at the judiciary as the last hope and most reliable organ. When there is any iota of political interference in the Judiciary and judicial appointments, the sufferer is none but the common litigants who seeks justice till the Hon'ble Apex Court. It is perceived that the Hon'ble Apex Court will pronounce the judgment keeping the essence of basic structure of the Constitution into consideration as well as taking into accounts the flaws which the Collegium had in its functioning.

Footnotes

1. (1973) 4 SCC

2 124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges

3 Article 124 (2) :- 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 sixty five 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:

4 The Constitution of the United States ; https://www.usconstitution.net/const.pdf (Visited on 11th May,2015)

5. http://www.supremecourt.gov/about/biographies.aspx (Visited on 11th May,2015)

6. https://jac.judiciary.gov.uk/about-us (Visited on 11th May, 2015)

7. http://www.parl.gc.ca/ParlInfo/compilations/SupremeCourt.aspx?Menu=SupremeCourt&Current=True (Last visited on 11th May.2015)

8. (1981) Supp (1) SCC 87

9. (1993) 4 SCC 441

10. The collegium controversy; http://archive.indianexpresscom/news/the-collegium-controversy/836029/2 (Last visited on 09/05/2015)

11. (1998)7 SCC 739

12. 3. Whether article 124 (2) as interpreted in the said judgment requires the Chief Justice of India to consult only the two senior-most judges or whether there should be wider consultation according to past practice;

13. Panel finds 3 top judges unfit for SC; http://www.hindustantimes.com/newdelhi/panel-finds-3-top-judgesunfit-for-sc/article1-1027632.aspx (Last visited on 09th May, 2015)

14. Why was lawyer kin of then CJI made High Court judge, government asks Supreme Court; http://indianexpress.com/article/india/india-others/why-was-lawyer-kin-of-then-cjimade-high-court-judge-government-asks-supreme-court/ (Last visited on 9th May, 2015)

15. "124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:–– (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio; (c) the Union Minister in charge of Law and Justice––Member, ex officio; (d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

16. 13. Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

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