THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014

A constitution bench of Supreme Court of India is hearing the challenge to the validity of NJAC Act, 2014. In doing so they were not discreet about the fact that judges are the interested parties. The arguments far from being adversarial have been turned into inquisitive enquiry as is apparent by the line of questioning by the judges. It appears that judges are evaluating as to which system is best. The earlier system where executive appointed the judges and grossly abused the position or the present system of in which judges themselves appoint the judges and which is apparently full of nepotism as nearly a 1/5th of all the judges appointed in high courts and supreme court is related to a previous judge. Living or dead. Unfortunately the question of nepotism was not raised by Attorney General with empirical data. At least news papers did not report it. The present system has come under flak from retired judges themselves. One such criticism of judges appointing judges is here. Regarding the corruption by the relatives of judges and inaction by appointing judges read here. Another similar story about corruption is here. Another report about rich relatives of former Chief Justice of India is here. How retired judges are using prefix ‘Justice’ forever i.e. even after demitting the office is another mystery in the face of express prohibition in Constitution. But who can judge the judges?

Any how, the line of enquiry by court in NJAC case is similar to the substantive due process arguments in the USA and is very delicate. It would be wise to tread on this line carefully. In my view court can not lay down the policy of appointment or evaluate a better one. Rather has only to see if the one propounded before it does not deviate from overall scheme of Constitution and thus does not violate basic structure of constitution. Of course it can judicially review it on all other available grounds like arbitrariness etc.

What is similar between India, Pakistan and Mynamar?

It is unfortunate that system of appointment of judges by judges finds similarity with two quasi totalitarian or  totalitarian  countries where military appoints military and the Government has no say and people have no right to know anything about it.

Last year the previous Government in its typical lacklustre style hurriedly passed a legislation called THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014. Click the link to read PDF. By another legislation constitution has been amended to introduce an article 124-A by which a judicial commission consisting of following 5 members, has been created to make appointment:

(1) the Chief Justice of India, Chairperson, ex officio;

(2) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;

(3) the Union Minister in charge of Law and Justice––Member, ex officio;

(4) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People

(5) one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:

And a caveat that eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

In my personal opinion, the above provision is nor only far from being exhaustive, is vague and full of new problems, some of which have been a friend, who though intelligent, is legally a lay man.

Speculation about the future.

While the debate in courts is going on and we shall come to know about its outcome, real soon. a frien asked me about my take on it. This is the query I received from a friend about formation of National Judicial Appointment Commission

“What is your opinion about NJAC ?
Why can’t we have permanent body for appointments?