By Ananya Mishra

Edited by Nandita Singh, Associate Editor, The Indian Economist

The Constitution of India provides for an independent judiciary. The principle of separation of judiciary from the executive is explicitly mentioned in the statute book under Article 50. While the appointment of the judiciary remains to be a contentious issue, the new government has not shied from making tectonic changes in the provision.

The new Modi Government, with the 99th Amendment Act introduced Article 124 A,B,C in the Constitution that entails setting up of a National Judicial Appointment Commission, which shall consist of 5-6 members including the Chief Justices, 2 judges of the Supreme Court, the Law Minister, and two eminent personalities. Prima facie the commission looks like a more transparent and democratic method of appointing Judges of the Supreme Court and the High Court than the Collegium system, but the devil lies in the detail.

The history of appointing judges traces back to the three Judges cases. In the SP Gupta cases of 1982, in which the court ruled that the President appoints the Judges of Supreme Court and the High Court after consultation with the Chief Justice of the Supreme Court and the High Court respectively, means that the President shall ‘consult,’ and consultation does not imply concurrence in opinion, and therefore the decision of the President shall remain final. This was the First Judges case.

In the Second judges case in 1993, the Supreme Court overruled its previous decision and stated that the term consultation meant concurrence, and that the advice of the Chief Justice was binding for the President. It held that the recommendation of the Chief Justice should be made in consultation with the two senior most judges of the Supreme Court.

In the third Judges Act of 1998, the Supreme Court upheld its decision with minor modifications, stating that the Chief Justice should make its recommendations after “pluralistic considerations” with four senior most judges of the Supreme Court. This verdict gave shape to the Collegium system, which is still prevalent till such time the NJAC bill is ratified by half the states.

The amendments made to the bill allows equal participation of Executive and Judiciary in the appointment of the Judiciary, making it more accountable and therefore increasing confidence of public in the Judiciary. However, the provisions of the act as analysed by legal luminaries tends to encroach upon the independence of the Judiciary. Firstly, any two members can veto the recommendation of the Commission. The Law Minister and the eminent legal personalities being 3 in number can easily veto any recommendations, assuming the eminent personalities to be a part of the executive. The second reason for which the NJAC is criticised is the lack of federal dimensions, as a single commission will be responsible for appointments both in states, as well as the centre, as opposed to the Collegium system where a separate collegium was consulted for state appointments. Moreover, it does not serve the basic purpose for which it was set up- to give more transparency to the judicial appointments. The fact remains that at the same time the representatives of the Judiciary can veto any decision and maintain majority, and the argument that the judiciary is weakened is a bit far-fetched, although the appointment of the eminent personalities in the commission will hold relevance as to who shall be appointed by a High Powered Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice. The idea that such personalities will vote against the judiciary or act as pressurisers for the agenda of the Executive too seems far-fetched.

The recent incidents of Solicitor General Gopal Subramanium’s promotion being withheld, and the revelation from the Chairman of Press Council of India, retired Justice Markandey Katju regarding politicisation of extension of a Madras HC Judge gives a body blow to the credibility of the institution.

The independence of the Judiciary is of paramount importance as the institution holds relevance in checking the sovereignty of the Parliament through judicial review, which is a basic feature of the Constitution. How the NJAC finally turns out will be seen in the coming years, but for now, one can take the Commission as a positive step forward, till such time that the issues highlighted are not experienced.

Ananya Mishra is currently pursuing his BSc in Physical Sciences. He is a KVPY scholar and is into active research in data analysis. Apart from these, he is also an active student member of Institute of Actuaries India. His interest spans financial mathematics, investments, current politics and international affairs. Other hobbies include chess and computing. 

Posted by The Indian Economist | For the Curious Mind