December 25, 2014

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National Judicial Appointments Bill 2014: Pros And Cons

- Shweta Krishnappa, [ ]

Shweta Krishnappa

With the collegium system for appointment of judges having come under the scanner, passing of this bill was pertinent but is it the panacea for all ills plaguing the judiciary?

Amongst the three pillars of Indian democracy - Executive, Legislature and Judiciary - the Judiciary has been reposed with great public respect and accountability. However, this pillar of the Indian Democracy has come under the scanner - for being corrupt and unaccountable, eroding public confidence in the system.

It is in the wake of these criticisms of the present-day judiciary that the Judicial Appointments Bill 2013 and the Constitutional 120th Amendment Bill were introduced, which however did not see the light of the day due to oppositions and consequent change in the Union government. In May 2014 after the Bharatiya Janata Party (BJP) assumed office under the leadership of Narendra Modi as Prime Minister of India, the government in quick succession passed the National Judicial Appointment Commission Bill 2014 and the Constitutional 121st Amendment Bill. These Bills now await ratification by the States as required under Article 368 (2) of the Constitution of India.

The objective of the 2014 Bill is to bring transparency in the appointment of judges as confidence in the working of "collegiums" formulated under the Second Judges Case (Supreme Court Advocates on Record Association vs. Union of India reported in AIR 1994 SC 268) and modified under the Third Judges Case (In re: Special Reference No.1 reported in AIR 1999 SC 1), has been eroded and it is believed that the collegium system has failed.

Due to this lack of confidence, there was need to constitute a National Judicial Appointment Commission on the lines of National Judicial Commissions prevalent in developed countries such as certain states of the USA, UK, Germany and France apart from countries such as South Africa and Israel.

In the wake of various appointments of Judges being undertaken based on unknown criteria, even though such appointees were allegedly corrupt - they were appointed nonetheless as alleged by Hon'ble Justice Katju. It is in the light of these malfunctions and absolute breakdown of the collegium system that a change requires to be brought forth and hence, The National Judicial Appointments Commission Bill 2014.

The Constitution of India contains provisions for the appointment of Judges of the Supreme Court and High Courts including transfer of judges from one High Court to another High Court under Articles 124 and 217. Under these provisions, the appointment of any Supreme Court Judge (including the Chief Justice) and the transfer of any High Court Judge is a function of the President acting in accordance with the advice of the Council of Ministers (Cabinet). There must however be prior consultation by the President. As regards the appointment of a Chief Justice, the consultation is to be with such of the Supreme Court and High Court Judges as the President deems necessary for the purpose. Consultation with the outgoing Chief Justice is not essential. As regards the appointment of a Supreme Court Judge other than the Chief Justice, the Chief Justice must always be consulted, and also such other Supreme Court and High Court Judges as the President deems necessary.

Thus, it may be noted here that under Article 217, the Constitutional consultees for the High Court appointments are the Chief Justice of India, Governor of the State and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. This prescribed mode of appointment worked well only during the first decade after 1950. Between 1950 and 1959, 19 Judges were appointed to the Supreme Court and every one of them was appointed on the recommendation of the Chief Justice of India. As far as High Courts were concerned, 211 appointments were made in the same period, where all of them except one was made on the advice of and with the consent and concurrence of the Chief Justice of India. However, things began changing during the 1960s with the Supreme Court becoming dynamic and delivering several decisions on the right to property under Article 31 of the Constitution.

It was felt that the Supreme Court had fallen out of tune with the society and a climate of 'total executive compliance' began to prevail during this time. It is post the lifting of the emergency in 1977 and in the background of interference in judicial appointments by the executive that the Supreme Court was called upon to safeguard the independence of the judiciary from undesirable appointments and arbitrary transfers by the executive. This interference was put to check with three cases - known as the First, Second and Third Judges Case wherein the collegium system came into being in the second and third judges case (Supra). This collegium system was introduced in the year 1993 and has been in operation for over 21 years. Recently, the collegium system has come under scrutiny for being a total failure and the same has also been criticised even by judges abroad.

The collegium was essentially criticised on the ground that the Judiciary assumes complete control over its own composition which would have a conformist or a club like attitude which is not prevalent in any other country. Further, a collegium which decides a matter in secrecy lacks transparency and is considered "a group in itself". Therefore, prejudice and favouritism on the part of one or the other member of the collegium for an incumbent cannot be ruled out. Choice of judges in a democracy ought to be democratic and transparent thus selection of judges based on undisclosed criteria reflects the lopsided functioning of a democracy.

Hon'ble Justice Katju alleged that "various appointments of judges were being undertaken based on unknown criteria, even though the appointees were allegedly corrupt - they were appointed nonetheless". It is in the light of these malfunctions and absolute breakdown of the collegium system that a change requires to be brought forth and hence the National Judicial Appointments Commission Bill 2014.

Objects of the National Judicial Commission 2014:

i) Appointment of judges in a transparent manner with the executive, judiciary and the legislature playing a role in the appointment of judges and transfer of judges

ii) Provides for a time frame to initiate the process of filling up of vacancies in the Supreme Court and the High Courts and lays down the procedure for the selection of judges accordingly

iii) May make regulations inter alia specifying the criteria of suitability with respect to the appointment of Judges of the Supreme Court and High Courts. The procedure for appointment and transfer of the judges accordingly

iv) This broad-based appointment of judges enables the participation of the judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of judges to the Supreme Court and High Courts.

Drawbacks of the 2014 Bill:

  • Howsoever novel and noble the objectives of the National Judicial Commission Bill 2014, the same have been introduced in haste without looking into various implications and ramifications of the implementation of this Bill. The Bill also states that if any two members of the Commission disagree with any appointment or transfer of judges, the same shall not be recommended by the Commission. This leaves a lot of uncertainty as it could be 'any two persons' of the Commission rejecting or disagreeing with the appointment or transfer of judges.
  • The Executive under the Bill being made responsible in the appointment of Judges would impede Judicial independence and may result in appointments undertaken to service the Executive interests.
  • The meaning of "eminent persons" is not defined under the Bill 2014. Are these eminent persons from the field of law or from any vocation is unknown and thus would lead to confusion as to who would qualify and fit the definition and scope of "eminent persons".

In Conclusion:

It is pertinent to note that the doctrine of separation of powers should be maintained, though there should be a degree of accountability but the same should always be commensurate with judicial independence and impartiality, as the judiciary alone is capable of determining the credentials of the prospective judicial appointees. Having said that, ultimately an appropriate balance between competing principles must be found as this is best suited in our Constitutional set up which is unique in our Indian Democracy.

Disclaimer - The views expressed in this article are the personal views of the authors and are purely informative in nature.

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