The Centre has proposed that a national judicial commission be set up to appoint judges to the Supreme Court and high courts. Actually, the NJC is part of the National Democratic Alliance’s election manifesto, and all alliance partners appear committed to fulfil this promise despite differences between the government and the judiciary over the issue. According to the former law minister, Jana Krishnamurthy, an all-party meeting will be convened soon to discuss the proposal and a bill to this effect introduced in the ongoing budget session of Parliament.
The idea of the NJC is not entirely new. In the S.P. Gupta case (1982), the former Supreme Court chief justice, P.N. Bhagwati, had suggested a collegium for making judicial appointments. Even the law commission recommended its formation in a report submitted in 1987. In 1990, the V.P. Singh government even introduced a bill in Parliament to this effect, but it could not be passed owing to the premature dissolution of the ninth Lok Sabha.
More recently, the Constitution review panel endorsed the long-pending proposal of the NJC. According to this report, such a body would be headed by the chief justice of India and would include two of the seniormost judges of the apex court, the Union law minister and an eminent person, who would be nominated by the president in consultation with the chief justice of India.
A proper mode of appointment of judges to the Supreme Court and high courts is a pre-requisite for an independent judiciary. But the appointment and transfer of judges cannot be the exclusive prerogative of either the executive or the judiciary. In the S.P. Gupta case, the Supreme Court had conferred the final power of appointment on the executive, which went about packing the courts with judges acceptable to the ruling party at the Centre.
The law commission has noted that the selection of judges was not always made on the basis of merit. Chief justices of high courts, to avoid an embarrassing situation, often had to give consent to candidates whom they had never recommended for appointment. Chief ministers would also use judges’ appointments as bargaining chips for gathering political support, often recommending names on considerations of caste, region, political inclinations, personal loyalties and so on.
For good reason, the Gupta judgment was criticized as being an abject surrender by the judiciary to the executive, and a review called for. In 1993, a nine-judge bench of the Supreme Court reversed the earlier verdict, holding that the judiciary should enjoy primacy and that all proposals for the appointment and transfer of judges could be initiated only by the chief justices of high courts and the chief justice of India.
But the present system is not flawless because the judiciary, on whom the responsibility for the appointment of judges now rests, has failed to fill vacancies promptly. This has led to a huge backlog of cases in courts. This is not to suggest that the appointment and transfer of judges should go back to the executive, as it was before 1993.
Under these circumstances, the concept of an independent judicial commission with balanced representation from the executive and the judiciary is doubly welcome. The formation of the NJC will make the workings of the executive and the judiciary more transparent, and will reduce, if not fully eliminate, the possibility of political influence and of arbitrary decisions.
The proposed commission should also be assigned the responsibility of selecting judges not only for the higher courts, but for the lower judiciary as well and should also be empowered to investigate cases of judicial impropriety and recommend action against errant judges.
Such a system has been working well in several countries around the world. It should be given a trial in India too in order to make sure that the judicial system functions smoothly and efficiently.