There is a paradox in the people’s perception of the judiciary. Dispensers of justice are expected to be neutral, above or beyond the hurly-burly of life. They are also, symbolically, upholders of the law and the Constitution. Hence everything about them is expected to be transparent, accountable, explicable. In their chairs as judges, they are expected to embody the principles on which the law they dispense is based. So the main objection against the collegium system of appointments of judges has been the closed-in nature of the procedure. Apart from this lack of transparency, the exclusivist system endangers balance. So there is often a covert tussle between the executive and the judiciary over various matters that is unhealthy for the democracy. One source of the tussle is the collegium system. The executive’s desire to force its will in the choice of judges was displayed in rather an unfortunate manner in the recent Gopal Subramaniam affair, and the remarks of the former judge, Markandey Katju, have shown how politics can influence decisions meant to be taken by the judiciary.
So it is good news that the national judicial appointments commission bill has been passed both by the Lok Sabha and the Rajya Sabha, after the government agreed to amend the bill as the Congress wished. The six-member panel will include two eminent persons, one of whom would be from a minority. The panel to choose the outsiders has also been decided on. There being so many minorities, he or she would be given a term of three years, so that rotation is possible. Although all political parties are agreed on the bill — they are going to get a look-in after a long time — the Communist Party of India (Marxist) has warned the government that the constitutional amendment bill with regard to the formation of the NJAC that has also been passed needs to go through first, then acquire agreement of half the states of the Union, the president’s signature and notification before the commission can be formed. Else it can be struck down in court. Perhaps haste is not such a good thing in a matter of such seriousness. But it is reassuring that the law minister has promised there will be no interference with the independence of the judiciary. For it is not clear how this commission, made in the service of transparency and therefore very welcome, would be helpful in the kind of manipulation that Mr Katju talked about.