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The Supreme Court has on 15th July, 2015 reserved the petitions challenging the law
related to the National Judicial Appointment Commission (NJAC) for judgment. The finest
part of the NJAC case is that it has succeeded in exposing the strange creature of
collegium system on the one hand and the equally unacceptable NJAC on the other. The
arguments in the case and the media reports on the Court proceedings have been
enormously instructive from the publics point of view. The point, however, is that the
outcome of the NJAC litigation, at any rate, will not resolve the fundamental issues related
to judicial appointments in India. And this is the sad part.
The verdict in the NJAC case is not predicable, but the possibilities are quite foreseeable.
There are only three contingencies in the case. One is that the Supreme Court may strike
down the 99th Amendment to the Constitution and the NJAC Act of 2014 in which case the
collegium system may or may not revive, depending upon the apex Courts views on that
point. Normally, when a constitutional amendment is struck down, the pre-amendment
provisions as interpreted by the Supreme Court earlier would revive, which precisely
would mean restoration of collegium mode, unless the Court says otherwise. The second
possibility is to dismiss the challenge against NJAC, which would mean replacement of the
collegium system by the new NJAC. The third way out would be a reconciliatory
arrangement whereby the Centre agrees to alter the composition of NJAC by giving
predominance to judiciary in the selection committee which may turn acceptable to the
Court for it would erase the apprehended threat against the independence of judiciary.
But, none of the above courses will cure the fundamental defects in the selection process to
the constitutional courts in the country. The fact of the matter is that it is not the judiciary
but the Parliament that can think of a better system of selection and that is bound to be
something drastically different from the present NJAC. What is needed is not a limited and
restrained judicial review of the existing unimaginative and quixotic legislative design but
a wider and deeper brand of legislative activism with a genuine democratic content.
Notifications and applications
The basic flaw with the collegium and the NJAC is that they are equally opaque,
undemocratic and non judicious. In both, there is no notification or opportunity to apply.
They are hallmarked by negation of transparency. An eligible and fit person cannot aspire
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for a fair opportunity by way of an equally fair procedure, in both the systems. Nor there
is an objective method of assessment of merit in either situation.
After visiting the U.K. Supreme Court in 2013, this writer had occasion to study and reflect
on the manner in which the independent Commission for judicial appointments functions
in the U.K. By that time the Constitution Reforms Act (CRA), 2005 was amended radically,
which in turn introduced an enviable U.K. model for judicial appointments. The Act as
amended in 2013 has put an end to the decisive role which the Lord Chancellor earlier had
in the process. There was valid criticism against the closed system that had a tendency to
exclude people who did not fit an establishment mould as confessed by U.Ks Ministry of
Justice.
transparency
should
relate
both
to
judicial
appointments
themselves
and
the
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representative and participative democracy. More than 900 Judges are appointed every
year in the U.K. under the present system. The striking feature is that the JAC has a lay
chair. There are five judicial members, two members from the legal profession, five lay
members, a Tribunal Officer and one Magistrate in the body. Apart from the JAC, there is
the Judicial Appointments and Conduct Ombudsman (JACO) which is empowered to
conduct investigation into the complaints about the appointment process and judicial
conduct. Even complaints from dissatisfied candidates are entertained and examined.
Consultation with referees is not the sole method of assessment of merit. A significant
trait of the U.K. system is that though the legislature has no role in judicial appointments
in contrast with the situation in the U.S, the present model is created by the British
Parliament through the CRA. The appointment to the U.K. Supreme Court is done by a
collaborative process in which the appointment Boards and First Ministers from England,
Scotland and Northern Ireland have a determinative role.
Malleson and Moules indicate that the concern was also about the inability of the
unsuccessful candidates to get intimation about the reasons for rejection of their
candidature. There is a strong demand for holding the interview in public by following
the South African model. Hopefully, the device of open interview would meet the concerns
expressed by the lawyers from non-traditional background within and outside the U.K. It
has a transparency element resembling the discussions in the U.S. Senate on judicial
candidature.
In the U.K. Supreme Court, I was able to study proceedings in two Courts, one headed by
Lord Neuberger and the other by Lady Hale. One case was pertaining to execution of a
will which later on was reported as Marley v. Rawlings (2014) 1 All ER 807. A significant
judgment on press freedom was delivered by the bench headed by Lady Hale as A v. BBC
(2014) 2 All ER 1037. The judges as well as their judicial work are open to public view. I
could witness a high level of objectivity and professionalism shown by the judges of the
U.K. Supreme Court which necessarily reflects a fault free appointment process, which a
county like India should try to emulate. Important constitutional cases are telecast live in
the U.K. The conduct of the judges on and off the bench is therefore open to public
scrutiny.
Legislation, not adjudication
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No Court has so far evolved a fault free method of judicial selection to constitutional
courts. Whenever the Court has attempted to do it, it has led to dangerous absurdities as
illustrated by the Indian Collegium System.
There is a marked difference between judicial process and political/legislative process.
This distinction is relevant in the context of the present NJAC case in India. In judicial
review, the Court is concerned only with the legality and validity of the impugned
amendment to the Constitution or the Statute. Charles Taylor rightly worried about the
best and brightest minds in America who were concerned exclusively with fighting out
the major battles in Supreme Court decisions. In an interview with Richard Kearney,
Taylor said:Im worried about the political battles being fought out before the judiciary. Thats not
only bad because it disempowers the political process of majority voting, its also bad
because that way of putting these issues makes them into zero sum games. When you go
before a judge, you are not asking for an intelligent accommodation, youre asking for
what the law says. The law can say either A or B is right. Its really a zero sum game
The abortion debate is a good example of this. When people fight it out in terms either of
the right of choice of the mother, which means no restrictions at all, or the right to life of
the foetus, which means no abortion under any circumstances whatsoever, its going to be
total victory for one side or the other. Nobody can sit down and make an accommodation.
On the other hand, if its a legislative matter then were in the domain of a human political
judgment which I think we ought to keep alive.
(Charles Taylor: States of Mind: Dialogues with Contemporary Thinkers on the European
Mind, Manchester University Press, 1995, Ed. Richard Kearney).
The litigation in the Supreme Court, like the abortion case, would mean either NJAC or no
NJAC; either judicial dominance or executive hegemony. This happens in an era of modern
independent commissions worldwide. We have better models to choose and more useful
lessons to learn. But we remain as a misdirected lot.
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