It is high time for NJAC 2.0

For the smooth functioning of a democracy, it is very important that its different organs of administration work in consonance with the doctrine of separation of powers, and at the same time, there must be checks and balances for the given powers. India’s constitutional polity has been effective in controlling the powers of the executive as well as legislature. The executive is the part of the legislature that has interdependence checks and both are being controlled by people through the universal adult franchise voting system. But, since the adoption of the constitution, the key point of talks has been the insufficient checks on the functioning and appointments of the judiciary. The self-serving and self-regulatory character of the judiciary has often resulted in increased cases of favouritism, nepotism, and cronyism.

An Independent judiciary is the essence of a healthy democracy

Speaking at the inauguration of an amenities block of the Maharashtra National Law University in Nagpur, Nitin Gadkari, Union Minister of Road Transport and Highways, said that “an independent, impartial and fair judicial system is essential for a free and fair democracy”.

Further, talking about the judicial decisions he said, “often I say to PM Modi and the law minister that whatever the decision may be, it’s the right of the judiciary to give the decision and that it should not be influenced by anybody”.

#WATCH | During Cabinet, I've often said to PM Modi & Law Minister that whatever the decision may be, it's the right of the judiciary to give decision & it shouldn't be influenced by anybody…I've seen companies getting ruined because of delay in justice: Union Min Nitin Gadkari pic.twitter.com/LhoY14NVWo
— ANI (@ANI) July 10, 2022

The comment is important in the context of the recent uproar over the unwarranted verbal remarks of the Supreme Court in the Nupur Sharma case. The Supreme Court blaming Nupur Sharma for the beheading of Kanhaiya Lal in Udaipur had attracted a lot of criticism from civil society and citizen groups. Following this, Justice JB Pardiwala called for regulation of digital and social media throughout the country to preserve the rule of law under our constitution.

Independent judiciary through independent appointments

Following the verbal remarks of the Supreme Court against Nupur Sharma, a critical debate was generated over the checks and balances of the powers of the supreme court. The controversy revived the debate on judicial appointments and arguments were made in favour of bringing National Judicial Appointment Commission 2.0 (NJAC). It is argued that lack of scrutiny in appointments of the judiciary has resulted in cases of judicial overreach and judicial activism.

It is important to understand that the judiciary is the single most powerful body in India. Enormous powers provided under the constitution without sufficient checks have increased the cases of favouritism, nepotism, and cronyism in the functioning of the judiciary. The collegium appointment system in which judges themselves chose judges has often resulted in the appointments of some near and dear which highly affected the independence and impartial functioning of the judiciary.

The self-serving and self-regulating character has blocked every effort of judicial reform since independence. The last effort to reform the judiciary was tried in 2014 through the Ninety-Ninth Constitutional Amendment Act. The Act of 2014, provided for the National Judicial Appointment Commission (NJAC) under Article 124A of the Constitution for the appointments of the judges in the Supreme Court. The amendment effectively provided that every appointment of Supreme Court judges will be based on the recommendation of the NJAC. The member of NJAC includes:

(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India––Members, ex officio;
(c) the Union Minister in charge of Law and Justice––Member, ex officio;
(d) 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 ––Members

The involvement of three judges in a six-member commission and two eminent personalities through the committee of PM, CJI, and LoO was in a way, an effort to bring transparency and checks to the appointment of judges. But citing Article 50 (Separation of judiciary from executive) of the Indian Constitution and doctrine of Separation of Powers, the Supreme Court, in the Supreme Court Advocate on Record Association vs Union of India case, said that the 99th Constitutional Amendment Act, 2014 “do not provide adequate representation of judiciary to ensure PRIMACY of the judiciary” and termed the amendment violative of the ‘basic structure’ of the Constitution.

The argument for the NJAC 2.0

It is pertinent to mention that Article 124(2) of the Indian Constitution provides a process for the appointments of Judges. It reads, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose and shall hold office until he attains the age of sixty-five years”.

In the Second Judge Case, the Supreme Court, interpreting the word ‘consultation’ in terms of judicial independence, said that “the CJI should have the greatest weight”. Citing Article 50 of the Indian Constitution, the Court opined that “the executive element should be minimum” and in the decision of appointments, “PRIMACY” lies with the final opinion of CJI.

In a way, the Supreme Court itself interpreted the primacy of CJI in the appointment’s decisions.

But the real question is, Does the Doctrine of Separation of Powers not apply to the judiciary? If judges are themselves appointing judges, then the Doctrine of both separation of powers and check and balances becomes redundant in the case of judicial appointments. The executive will be left with the provisions of impeachment to check the powers of the courts. It is also unlikely that the executive and legislature would ever use the impeachment door to check any judicial incompetency. So, the only way out would be to invent an impartial, transparent, and constitutionally viable process similar to NJAC 1.0 for judicial appointments. Efforts should be to make NJAC 2.0, which stands firm on the parameters of constitutionality. Article 50 of the Indian Constitution provides for separation of judiciary from executive but it does not prescribe separation of judiciary from the legislature.