The Supreme Court of India has recently given an important judgement on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The decision mandates the Union Government that the President of India should appoint all election commissioners on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
In its order, the court has underlined the independence of the Election Commission and said that the appointment process of CEC and EC should be fair and transparent and must ensure public faith in the institution. It has directed the Government to make “necessary changes” to ensure that the Election Commission of India becomes “truly independent”.
It is ironic that through this order, the apex court has asked the Government to follow the format which itself had been rejected in 2015 with regard to the appointment of judges by the National Judicial Appointments Commission (NJAC). Rather, on account of privacy, it had justified the current unaccountable and arbitrary “collegium” system of appointment of judges to the Supreme Court and high courts.
The recent decision of the Supreme Court and its ongoing war of words with India’s Law Minister Kiren Rijiju and Hon’ble Vice President Jagdeep Dhankhar has once again brought the National Judicial Appointments Commission (NJAC) to the Centre of discussion and deliberation. In the last few months, there has been a confrontation between the Centre and the Supreme Court over the process of judicial appointments.
The Vice President of India, Jagdeep Dhankhar, had criticised the Supreme Court for repealing the National Judicial Appointments Commission Act, calling its decision “contrary to the supremacy of Parliament, basic spirit of the Constitution and democratic mandate”. Several other key persons, including Law Minister Kiren Rijiju, have also been underlining the need for the National Judicial Appointments Commission (NJAC) to implement long-pending judicial reforms while ensuring independence, transparency, fairness, and accountability of the judicial system.
It is noteworthy that the long, complex, and expensive process of disposal of crores of cases pending in various courts has eroded the faith of the common man in the judicial system. The one seeking justice has to endure unbearable waiting, torture and suffering for justice and feels punished.
The NJAC was envisaged as an independent and inclusive body for the appointment of judges to the Supreme Court and High Courts. It was approved by Parliament and 16 state legislatures. But a five-judge Constitution bench of the Supreme Court struck it down in 2015.
After this, the process of appointment of judges takes place only through the collegium system. Under this system, the Chief Justice of India as well as the four senior-most judges of the Supreme Court, have the power to recommend appointments and transfers of judges. Similarly, in the High Court, the collegium has the authority to accomplish the procedure by the Chief Justice of that court and the two senior-most judges.
Although the Government has the authority to send back the proposed names for reconsideration or even reject them completely, however, this power has been used very little because it creates the possibility of confrontation and increases the possibility of sending a wrong message to the public. This arbitrary practice started in 1993.
Thus, the Government and Parliament have a very limited role in the collegium system, and the power is concentrated only in the hands of the judiciary. Various jurists and intellectuals believe that there is a complete lack of transparency, fairness, clarity, accountability and inclusion in this system. One of the main concerns with the current process of judicial appointments is opacity and accountability.
The process is often shrouded in secrecy, with limited information available to the govt and the public about the criteria used to make appointments, the names of the candidates being considered, and the reasons behind the final decision. This lack of transparency raises questions about the impartiality of the process and has led to allegations of favouritism and nepotism. Therefore, questions have been constantly raised on this encryption process.
Of course, the independence and impartiality of the judiciary is paramount in a democratic setup. But the self-centred infinite powers of the present collegium system are contrary to the provisions of checks and balances inherent in all constitutions not only in India but also in all the democracies of the world.
The current situation between the Union Government and the judiciary is that of deadlock and confrontation. The Government stays away from appointing inappropriate and suspicious persons. As a result, a few files of recommendations made by the Collegium remain pending. On the other hand, despite requests for reconsideration by the Government, the Supreme Court keeps sending the names selected/proposed by it repeatedly.
As a result, judicial vacancies are continuously increasing, adversely affecting the time-bound disposal of a large number of pending cases. The scenario is extremely sad and unfortunate, wherein both the Government and the Supreme Court are seen publicly blaming each other for this deplorable situation.
This further breaks the trust of the public and makes them feel frustrated and helpless. These technical and administrative factors impact the smooth coordination and working of the justice system. Thus, at present, there is a huge impasse between the central Government and the Judiciary.
Also, there is the pressing problem of inequitable distribution of power as well as a lack of diversity and inclusivity within the system. The collegium system of appointments of judges to the Supreme Court and high courts needs to be replaced by a more comprehensive, inclusive, transparent, and accountable appointment mechanism.
The Government enacted the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, with effect from 13.04.2015. The NJAC included the Chief Justice of India as the Chairman, two other senior judges, the Union Law and Justice Minister and two eminent persons as members.
These eminent persons were to be appointed by a committee comprising the Chief Justice of the Supreme Court, the Prime Minister, and the Leader of the Opposition. They were given the right to veto. The judiciary had in 2015 revoked the National Judicial Appointments Commission by declaring the NJAC and the 99th Constitutional Amendment unconstitutional. Rather it regained the supremacy of its arbitrary powers by projecting NJAC to be an affront to the principle of judicial independence.
Thus, the need of the hour is to take effective measures leading to the enhancement in the functioning of the judicial system. A hybrid mechanism with a collective and transparent procedure for appointing judges is desirable for India. A system that ensures adequate representation, inclusivity, merit, and a duely defined process for selection are all key aspects in the making of a robust judiciary; it is imperative that the Indian judicial system imbibes this at the earliest. It would enhance the strength and inclusivity of Indian democracy if the Apex Court itself took the lead and initiated in this direction.
In this backdrop, it will also be important to reconsider the reforming of the NJAC. The apprehensions of the judiciary should also be considered in the revised NJAC. The veto power provision of the members nominated by the Government should be replaced with the democratic decision-making process.
Also, the appointments to be made by the committee should be of people from judicial backgrounds. Those appointed should not only be from among senior jurists of national repute having at least 40 years of judicial experience; at the same time, they must be non-aligned to any political party/ideology. The Hon’ble President of India can be the Chairman while the Law Minister can be the Member Secretary of the seven-member (The President, three senior-most judges of the Supreme Court including CJI, two eminent jurists and Law Minister) revised NJAC.
Representation of one woman and one SC/ST member should also be ensured in this seven-member commission. There will be a single vote of all six members. In the event of an indecision/tie-up, the President will exercise his vote, which will be decisive.
Further, considering the plethora of unsurmountable experience they gained during their tenures, a cadre of public service should also be created for retired judges. A law should be made to appoint competent retired judges in various tribunals and judicial bodies/commissions, etc., from this pool. At the same time, retired judges should also be barred from accepting/acquiring Rajya Sabha membership and posts such as Governor, obtained by the grace of the Government. Such appointments prima facie appears to be a matter of ‘quid-pro-quo’ and question mark the independence, impartiality, and credibility of the judiciary. It should also be kept in mind that while the judiciary, legislature and executive are adequately represented in the newly created appointment mechanism, none of them should have arbitrary powers or authority.
The National Judicial Commission Bill 2022 present itself as a bright ray of hope amid the current tussle between the central Government and the judiciary. The Central Government and the Supreme Court should move forward towards implementing the revised National Judicial Appointments Commission through mutual dialogue.
The process of appointment of chiefs of institutions like the Central Bureau of Investigation, Enforcement Directorate and National Investigation Agency etc can also be reformed on the lines of the recent decision of the Supreme Court (regarding the appointment of Election Commission) to ensure their transparency, impartiality, and credibility. The functioning of these institutions, which are considered ‘caged’, should also be unambiguous and undoubtful. The conflict over the mechanism of appointment of judges can be resolved by respecting mutual concerns.
The difference can be ironed out through a thorough consultation, which should take place at the earliest, failing which not only will the vacancies soar, but brilliant minds will also be discouraged from accepting judicial appointments. Pointing fingers at these institutions and accusing them of political abuse undermines democracy. Steps should be taken to avoid public confrontation. Collective and cooperative efforts of both the Government and the judiciary will be prudent in coming to a middle ground. This will eventually benefit the public at large with a fast and efficient judicial redressal mechanism which will deepen democracy.