What an independent judiciary is all about

The Supreme Court recently dismissed a batch of petitions challenging the constitutionality of the National Judicial Appointments Commission (NJAC) Bill, passed by Parliament along with an enabling constitutional amendment Bill. The Bills, once they become law, will replace the existing ‘collegium’ system for appointments to the higher judiciary with a six-member NJAC. It will have the Chief Justice of India (CJI), two other senior justices of the Supreme Court and the Union Law Minister as its ex-officio members.

The remaining two members will be “eminent persons” chosen by a committee comprising the CJI, the Prime Minister, and the leader of the Opposition.

The NJAC Bill was challenged on the ground that the NJAC cannot recommend a person for appointment if any two of its members do not agree to it. This veto power, it is feared, can be misused to embarrass the judiciary, as a candidate recommended by the CJI and the other two judges on the Commission can be rejected by the rest of the Commission’s members. In essence, the argument is that the new system takes away the primacy of the judiciary in matters of appointment and that, in turn, will compromise the independence of the judiciary.

The relevant question, therefore, is: Will the veto provision erode judicial independence?

At present the judiciary has primacy in deciding who gets appointed as a judge of a High Court or the Supreme Court. The process is initiated by a collegium of judges, and while the executive government can ask for reconsideration of a recommendation, the collegium has the final say.

The NJAC Bill seeks to change this. It is not clear whether the objection is to the NJAC per se , or the need to establish primacy of the judiciary in the body – the latter being a sort of tautological argument.

As for the first, the opinion is overwhelmingly in favour of the collegium system being changed. In his autobiography, jurist Fali Nariman has referred to the case, popularly known as the Second Judges’ case, which established the collegium system, as “a case I won – but which I would prefer to have lost”.

We then need to revisit the presumption that if the primacy of the judiciary in the NJAC taken away, its independence will be threatened.

While the independence of our judiciary is a matter of pride, to say it is independent only because of the collegium system is flawed.

In the US, the process is entirely political — judges are nominated by the president and confirmed by the senate.

In fact, US presidents are known to nominate individuals who broadly share their ideological views. But that does not mean the US Supreme Court is any less respectable or independent than ours.

In India too, if we take the examples of other equally important constitutional functionaries such as the Comptroller and Auditor General of India or the Chief Election Commissioner, they are all executive appointments but that hasn’t come in the way of their independence.

The constitutional framework on how judges are appointed is important, but that on its own cannot ensure or diminish the independence of the judiciary. What is more vital is the post-appointment framework.

For that, the rules governing the judges’ seniority, tenure, transfers and removal need to be insulated from possible manipulation by the executive. And to ensure that they act without favour, it is important to ponder over whether judges should seek or accept any posts soon after their retirement (the appointment of Justice Sathasivam as governor of Kerala is a case in point).

In this regard, it is the Judicial Standards and Accountability Bill, which is in the offing, we must scrutinise.

The opposition to the NJAC from the primacy standpoint makes it a mere ‘turf’ issue. The NJAC seeks to replace a closed-door system of appointment with a broad-based and participatory process, which gives primacy to none. And the Bill’s veto provision should be seen as a balancing factor which safeguards against partisan appointments.

The writer is a Mumbai-based lawyer