- The entire citizens of the country are witness to unruly and chaotic scenes prevailing over the last few sessions of the Parliament greatly disrupting the proceedings and disallowing any worthwhile business transactions from taking place in both the Houses. No day passes without the proceedings getting postponed or dismissed as the opposition parties disallow any possibility of conducting business. The way political leaders cutting across party affiliations are indulging in sloganeering, placard raising, shouting, and trooping into the well of the House hardly presents a comforting picture to the citizens who are left dumbfounded for the way elected representatives behave in the august Houses.
PC: macrovector
- Surprisingly, something unusual happened when opposing political leaders were found to be on the same page when the issue of the National Judicial Appointments Commission (NJAC) surfaced in the Lok Sabha raising hopes of bipartisan support on one subject at least. As we are aware, the commission was supposed to replace the collegium system of judges’ appointments in the form of the NJAC. As things turned out, the law was struck down by a five-judge Supreme Court bench with a 4-1 majority in 2015 much to the chagrin of the political parties wishing to usher in much-needed accountability in the appointment’s process of the higher judiciary.
- As such, the current support for NJAC is a good context for all stakeholders to review the debate. Make no mistake, the political class rightly critiques the principle of judges appointing judges, which incidentally has no precedent anywhere else. On the other hand, the collegium-backers cite instances of executive overreach and suspicious government interest in judicial appointments in the 1970s and 1980s. As is its wont, the political class always keeps eyes and ears open to wade into any opportunities that provide a platform to ascertain its supremacy. As such, those undisputed misgivings led to the firm establishment of a collegium system whose rules were formalized through the Second and Third Judges Cases in the 1990s.
PC: pch.vector
- Nonetheless, the collegium has not only attracted credible suspicions of nepotism, but also displays manifest opacity, and on occasion, ignores obviously meritorious candidates as the past several instances suggest. Looking into the composition of the proposed six-member NJAC would not harm whatsoever. The Chief Justice of India as chairperson, two senior-most Supreme Court judges, Union Law Minister, and two eminent citizens, the last two nominated by a panel comprising the Prime Minister, CJI, and leader of the opposition, which was to be a transparent constitutional body. However, thanks to SC swinging the axe, we never got a chance to observe this experiment.
PC: macrovector
- Thankfully, now that there’s some political momentum behind the idea, let’s chalk out what a good NJAC should be. The most ticklish rule in the earlier NJAC Act was any two commission members can veto a candidate raises suspicion as a backdoor attempt to give the Government primacy, and hence, this rule should go. The choice of two civil society members of NJAC must pass the smell test as potential yes-men siding with the executive cannot be ruled out. Since politics is heavily polarized, both the PM and the LoP, as members of the panel choosing these two commission members, must rise above their politics, a tall order indeed. Ultimately, the collegium system does not work but the NJAC solution can be better as well.
