The National Judicial Appointments Commission (NJAC) Bill, 2014, which lays down the procedure for the appointment of judges to the 21 high courts and the Supreme Court of India, does not make any drastic departure from the present mode of judges appointing themselves. The centre has delayed in notifying the coming-into-force of the new law, which makes the much-vaunted transparency in judicial appointments farcical.
The judiciary, the executive and the legislature comprise the state. Unlike the latter two, the judiciary alone has the onerous task of dispensing justice, isolated and immune from public opinion, by evaluating evidence submitted before it. The judiciary is not accountable to the people for dispensing justice so that even gross mistakes committed by the subordinate judiciary can only be corrected by the superior judiciary using judicial review or appeal, which by-and-large, is not within the easy reach of the poor.
These drawbacks were to be corrected by the new law. But the NJAC comprises the Chief Justice of India, two seniormost Supreme Court judges, the Union law minister, and two so-called ‘eminent’ persons to be selected by the Chief Justice of India, the Prime Minister of India and the leader of the opposition or the leader of the largest political party in the Lok Sabha. The latter two are political appointees, so that the executive which is a political organ has a decisive role in judicial appointments.
However, the judiciary too is not a holy cow. Scandals have rocked the judiciary, with the latest being the writings of former Supreme Court Justice Markandey Katju, who comprised the collegium responsible for appointing judges. Upright and outspoken, he recounted a few instances of alleged corrupt high court judges who were continued as permanent judges despite his attempts at forcing them to resign. Apparently, even today, the august judiciary is not totally immune from executive interference.
A former law minister, Shanti Bhushan, was issued a show cause notice for committing contempt of court when he alleged that several former chief justices of the Supreme Court were corrupt. Prior to that, the Bombay High Court had laid down the dictum that truth was no defence to a show cause notice received for alleged contempt of court. This had the undesirable effect of curbing press freedom and silencing criticism of the judiciary for over a decade.
Despite all this, the NJAC Bill evoked widespread acclaim because the Central Government had to make a reference to the NJAC when a vacancy arose in any high court or the Supreme Court. The existing vacancies have to be notified within 30 days of the Act being notified. Also, the NJAC has to be notified six months in advance before a judge retired to expedite filling the vacancy. Within 30 days of a judge dying or resigning, the NJAC has to be informed, so it can quickly fill the vacancy.
But apart from these unique features, the NJAC Bill follows the old method of appointing judges to high courts by placing the responsibility on the chief justice of the parent high court where the vacancy arises. All chief justices are transferee judges who have attained seniority in the all-India seniority list. They normally act on the recommendation of their seniormost judges who are from the same high court. Sometimes, senior judges recommend names of lawyers from their own chambers, which they have known very well while practising as lawyers.
Similary, for the appointment of the Chief Justice of India, the NJAC was mandated to recommend the name of the seniormost judge of the Supreme Court “if he was considered fit to hold office.” There have been a few chief justices of high courts who have never delivered path-breaking judgments, but have nevertheless been elevated to the Supreme Court.
The only unique feature of the NJAC Bill is that the commission is given veto powers so that if any two members of the commission veto an appointment, the incumbent will not be elevated. Similarly, for appointment as Chief Justice of a high court, the NJAC members can veto an appointment. But apart from that, they are mandated to respect seniority as is presently the case.
What is unique is the Judicial Standards and Accountability (JSA) Bill, 2014, which envisages a five-member committee to deal with complaints against high court or Supreme Court judges and a probe team that will investigate charges against a judge. Earlier, all such complaints were forwarded to the Chief Justice of India, who merely transferred a permanent judge from his parent high court to some other high court.
As per the procedure laid down in the JSA, the probe team will be headed by a government-appointed advocate to investigate serious charges in camera against any judge and if these charges are proved, the judge concerned is not given judicial work. This too is not unique.
Innovations have to undergo transformation with the passage of time and so there is no gainsaying that the two Bills will have to be amended to give them more teeth to make the judiciary more responsive to the needs of the people. Justice delayed is justice denied and justice in a vacuum is injustice for all
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