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.
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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