To buttress the argument for a National Judicial Commission comprising only of the superior judiciary on the ground that inclusion of persons from outside the Judiciary would impair judicial independence and would run against the doctrine of separation of powers is to totally negate the doctrine of checks and balances that is equally intrinsic to a democratic polity. A sizeable section of jurists and constitutional experts are of the view that there is an urgent need to enact a comprehensive law to set up a National Judicial Council comprising Chief Justice of India, some senior members of the higher judiciary and two or three independent person appointed by the President of India. Independent members will be nominated by the President from a panel of eminent persons?who shall not be sitting or former judges but may be eminent jurists?drawn up by a committee comprising Vice President of India, Speaker of the Lok Sabha and leaders of the two Houses of the Parliament and Leader of the Opposition. Such a Commission will be an ideal mix of the doctrines of separation of powers and checks and balances. Experience has shown that judicial appointments and promotions by collegiums of judges is neither in the best interest of the Judiciary nor of the polity as a whole. Checks and balances are not out of place in such matters.
The Judges (Enquiry) Bill that the Government proposes to enact in the winter session of the Parliament is an improvement over the existing law but falls far short of expectations. The move to set up a National Judicial Commission to discipline erring members of the higher judiciary is welcome so far as it provides for small punishments?issuing advisories or censuring members of the superior judiciary?for ?minor indiscretions?. The present system that provides for impeachment or nothing is most unsatisfactory. Although there have been allegations that no member of the Judiciary has so far been tried. Only one of them?Justice Ramaswamy?was found guilty by his peers but couldn'tbe impeached because the ruling party?the Congress (I)?abstained from voting. A 2/3rd majority in both the Houses of Parliament is required to impeach a judge. Since this motion failed to secure 2/3rd support in the Lok Sabha, it perished and the judge who was pronounced corrupt by a collegium of judges got scot-free. As if this was not enough, the indicted judge refused to resign and continued to attend the Supreme Court till he reached the age of superannuation making a mockery of the concept of judicial accountability. That the Chief Justice of India (CJI) declined to allocate cases to him is another story. The case proved beyond a shadow of doubt that the impeachment procedure is time consuming, cumbersome and faulty. Petty political considerations also come into play in such cases.
One of the infirmities from which the proposed law suffers is that it keeps CJI out of purview of the proposed five-member National Judicial Commission comprising of CJI, two senior most Supreme Court judges and two High Court judges. Former CJI, J.S. Verma, has strongly pleaded for bringing the office of CJI under the proposed commission'spurview. His argument is that CJI and other judges of the apex court were of equal status and the CJI was only the first among equals. Exempting CJI, he argues, may be perceived as an attempt to subordinate them, which is not envisaged by the Constitution. The argument that the office of CJI needs to be exempt as was the case with the Prime Minister in Lok Pal Bill is silly. Office of CJI can'tbe equated with that of PM who is the elected head of the Government. There is a political process to get rid of the PM if he is found wanting, namely by moving a motion of no confidence against him. Bringing the PMO under cloud, it is pointed out, would make the government non-functional. This is not the case with CJI. At present, a motion of impeachment adopted by both the Houses of the Parliament can only discipline him. As shown above this procedure is cumbersome and time-consuming. Hence, the need to bring CJI under the purview of the proposed National Judicial Commission.
The proposed Judicial Commission is not empowered to deal with the appointments, promotions and transfers of judges of the higher judiciary. The present system wherein the Executive and Legislature have been kept out of the procedure is not satisfactory. Experience has shown that leaving these powers only with the judges encourages factionalism and leads to in breading. The Supreme Court itself has not been consistent on the issue of giving Executive a role in appointment of judges. In the first Judges case of 1982, the apex court in a split verdict lost the last word to the Executive in judicial appointments. It led to abuse of the powers by the Government of the day. In the second Judges case (1993), the Supreme Court made the advice of the CJI binding on the Government. This was perhaps a response to the disastrous fall out of the Executive'smisuse of its powers of appointments. In response to a Presidential reference in 1998, the Supreme Court diluted the power of the CJI and vested the same in collegiums of judges presumably to avoid misuse of power by the CJI or his committing an error of judgment. There is no unanimity on the interpretation of the court order on the issue. One view is that the judicial appointments have to be made ?in consultation? with the collegiums while some other say it is to be done ?after consulting? the collegiums. The issue whether the selection by the collegiums is final or recommendatory needs to be settled once for all.