"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, August 25, 2014

National Judicial Appointments Commission: will it be sweet or sour?

The 121st amendment to the constitution, shunting out the collegium system of judicial appointment and replacing it with National Judicial Appointments Commission (NJAC), has seen the light of the day  (pending Presidential Assent) and brought with it a volley of discussions. The life of the Amendment Act is to kick-start with an impending challenge on its constitutionality.  Four petitions doubting the constitutional worthiness of the Amendment Act is due to be heard in the Supreme Court today. The Act has to meet the behemoth – basic structure.

A major drawbacks of the collegium system, besides it being extra constitutional, was the shroud of secrecy in which it functioned. Also the fact that judges appointing their brethren were unheard of in a system that runs on the basic principles of separation of powers.

The establishment of NJAC is justified due to the failed collegium system and legitimated through the constitutional amendment. The patent difference between the collegium and NJAC is the composition of the selection body, which has non-judicial representation.  Involvement of the Executive is through the presence of the Law Minister and the committee to appoint the two eminent persons.    The committee to nominate eminent persons consists of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People/the Leader of single largest opposition party in the House of the People. Law Minister and the appointed eminent persons bring in the non-judicial component.

Even this structure if work beyond public gaze can be plagued by the same problems that collegium system had, secrecy. The collegium system comprising of presumably superior legal minds had no reason to fail but on the principle of separation of powers. Whereas it was failed for the choices it made. The appointments made and the method of choosing has been in the line of fire for long and were condemned as arbitrary.  To analyse whether the procedure adopted by the collegium were faulty that it attracted criticism is far from possible as we are blind about how its business were conducted.

It could be assumed that transparency is the major factor that can save an institution from the critique that it acts arbitrarily. Laying out clear and unambiguous procedure is one way of tackling arbitrariness. So also, making the proceedings transparent. This transparency if infused into the procedure will be a perfect mixture. The discussions in the Commission and the Committee to nominate eminent persons shall be recorded. The statements a member makes when recorded and made public will add accountability factor, which is an offshoot of transparency.

It could be argued that members may be reluctant to speak freely if the discussions are made public. It is a ridicule even to suggest that the persons of the stature who shall be the members of the Commission will be afraid to speak out and be accountable for their statements. Also, the matter in discussion is not whether a prospective groom or bride is eligible that open statements may hurt the sentiments, but vital judicial positions with enormous implication for the nation and its future. 

Proof of the pudding is in the eating and the taste depends upon the ingredients and the cooking method. Let us hope, surviving the constitutional challenge, the procedure laid out for the functioning of NJAC will lift the cloud of secrecy from the process of selection of the higher judiciary.  

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