Justice Minister Kiren Rijiju has told Parliament that there is a reason to bring the National Judicial Appointments Commission (NJAC) law back. Strangely enough, the minister’s statement comes just days after CJI NV Ramana’s comments on the legislative debate were neglected by parliamentarians. Whether a new NJAC is the order of the day is still open to discussion.
The college system of appointing judges, while seen as an important tool in maintaining the independence of the judiciary, which is part of the basic structure of the constitution, is not without its problems. Questions about the transparency of appointments have been raised in the past. While some experts argue that the October 2017 Supreme Court decision to publish all of its future decisions online addresses this concern, the effect, all in all, is only partial. The opacity of the admission criteria / considerations behind a recommendation for employment or a transfer remains. In fact, some of the recent decisions clearly reflect this; Then-presiding judge of the Tamil Nadu Supreme Court, Vijaya Kamlesh Tahilramani, resigned in September 2019 after the college upheld its decision to transfer her to the Meghalaya Supreme Court, one of the smallest in the country. Remember, Tahilramani was the senior high court judge in the country at the time. The College responded to the controversy by simply saying that it had “valid reasons” and would disclose them if necessary. If there were indeed real, incontestable reasons for his final decision, they should have been brought to light.
In other cases, mostly in the case of transfers, the decision of the college meets with fierce opposition from the bar, because it considers it to be unjust or insufficiently justified. Substantially opaque selection also means that it is difficult to identify a candidate’s conflicts of interest until an appointment is completed. That being said, the current appointment mechanism has turned the higher judiciary into a kind of brotherhood. It created an “uncle-judge” syndrome and resulted in the predominance of the bar association in the higher justice system over those promoted from the lower justice system, arguably a more diverse pool.
However, the NJAC law passed in 2014 – and rejected as unconstitutional by the Supreme Court in 2015 – suffered from serious loopholes. While the rulings of the Supreme Court’s Second and Third Judges had cemented the primacy of the judiciary in appointing judges, the NJAC law could possibly have watered this down with its veto provision. Any two members of the six-member commission could veto an appointment; Given that the Union Justice Minister and two “outstanding” non-judicial members – appointed by a committee consisting of the CJI, the Justice Minister and the leader of the main opposition party – could theoretically checkmate the three judicial members (the CJI and the next two) senior judge of the Supreme Court), the balance of power could very well have shifted to the legislative pillar of the state. Without defined “eminence” criteria, political ideologues, some of whom may believe in a “committed judiciary”, could have become tools to achieve the goals of the political class.
At the same time, the appointment of judges cannot be left to the judiciary alone. The many vacancies in the higher justice system show that the college system has only prolonged a turf war; The government claims that it does “due diligence” on some referrals, but nearly four out of ten seats for high court judges are vacant. Delays made on purpose when the executive branch is not a disinterested party, or for other reasons, can actually mean shorter terms for judges, even if their appointments are eventually cleared. What is needed is a more robust alternative that protects judicial independence.
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