The issue of judicial appointments has been a vexed problem. Initially the power was with the government, which only needed to consult the Chief Justice of India on the appointment of judges to the higher judiciary. This led to ‘politically committed’ judges being appointed. In 1993, the 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’s primacy in judicial appointments – wrested the power of judicial appointments, arrogating the right 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 a 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 their selection of candidates 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.
The collegium system undoubtedly brought in greater independence of the judiciary. But it also had its own problems. The appointments through this system were made in a totally non-transparent – and often nepotistic – manner.
The National Judicial Appointments Commission (NJAC) 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 minister, two “eminent” persons (selected by a panel consisting of the Prime Minister, Leader of the Opposition and the CJI) and three senior judges of the Supreme Court would select judges. According to the terms of this commission any two persons could veto an appointment. Also, the secretariat of this commission would be with the Union law ministry. However, there was no provision of transparency or any rational basis of selection.
The constitutional validity of the NJAC was challenged by several bodies and groups on the grounds 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 that a full-time judicial appointments commission 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 criteria for selection, advertising vacancies and evaluating the applicants/nominees on a discernable basis according to the criteria laid down.
By its judgment today, the court has struck down the NJAC on the ground that by giving the government a substantial say in the appointments of judges, it would compromise the independence of the judiciary. The court will hold a further hearing on November 3, to discuss the improvements that could be made in the working of the collegium system.
The Supreme Court’s judgment is welcome, especially 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 them. I hope that today’s decision acts as a catalyst to bring about these important reforms.
Prashant Bhushan is a senior advocate who argued the case against the NJAC on behalf of the Centre for Public Interest Litigation