By Ashutosh Pandey,
The Parliament has finally passed the National Judicial Appointment Commission bill and 121st constitutional amendment enabling the establishment of National Judicial Appointment Commission (NJAC). Until now the Collegium system (which had only high judiciary judges) was in place to appoint judges, the NJAC is body of members from the judiciary, the legislature and civil society (possibly legal luminaries) in almost equal proportion. It will have Chief Justice of India as its chairman, two senior most judges of Supreme Court, the Law and Justice Minister and two eminent per sons who will be appointed by committee of Prime Minister, CJI, Leader Of Opposition Lok sabha
The collegium system, to be crudely put, was a system in which Judges themselves appointed judges. In the early years of this self constructed appointment system by Supreme Court in a series of cases namely first, second and third judges cases , the legislature did had some “say” in the appointment process, but later supreme court ruled that the (names) recommendations made by Collegium is binding on legislature . During the early 90s it was considered “”best”” appointment system, as was assumed that who better can know the best names to be judge than the members of the judiciary itself.
This new Collegium system was brought citing reasons that the earlier system had cases of judges being appointed with some political affiliation and/or inclination. Some judgements of the apex court did certify this fact, for eg the Additional District Magistrate Jabalpur vs Shivakant Shukla case (1976) in which the suspension of fundamental rights during the emergency was upheld. It is often alleged that Chief Justice of India succumbs to the Central government and the same happening at state level in high courts. Various Judges irrespective of being a product of collegium system or otherwise have come out in public disclosing the “inside” tales which revolves around. Justice Katju himself a beneficiary/product of collegium system has been highly critical about it. Appointment in particular cases are made only when both the Legislature and respective high court fall on the same wavelength for a Name, although this is wise, but this happens for “otherwise” reasons.
Judges appointing judges, no other functioning democracy in any part of world allows this to happen except India. When the collegium system was brought it was hailed to be solution to the then problems, it is interesting to note that any new system is considered to be better than previous one, only then it is adopted. With the time passing, the higher judiciary got plagued by nepotism. There are numerous cases, openly acknowledged by various retired judges, in which members of same family and advocates of the same chamber making it to the top Judiciary, but it is wrong to assume that it is not that a Judges’ family or the advocate chamber cannot have continuous “supply” of brilliant people willing and getting appointed because of their ability and not affiliation. It must be appreciated that we did have some of the best and fine judges coming from the collegium system. There have been cases of flaws, but no system is perfect. I am not advocating “”for”” collegium system neither am I against the new NJAC . The constitution is also vague to specify the eligibility conditions for person to be appointed as Supreme/High Court judge.
To keep things simple and straight it would be desirable to bring total new system in the appointment. The new system to comprise of an exam to be conducted by Union Public Service Commission for the appointment to High Court, only serving district and sessions court judges with 10 years experience and willing lawyers with 15 years experience with reasonable track record, to be eligible to apply for the post. It is super rare that a District judge (who has come by passing exam for the state judicial service) reaches to the post of High Court Judge, it only happens when there is a political and/or monetary catalyst involved .
We do have Higher Judicial Services exam presently but it constitute only a “”part”” to the appointment to the sanctioned strength and the rest being done by collegium and now NJAC. The exam should be single window to make a list of individuals to appointment to High Court, and after competing tenure of say 15 years and evaluation be carried on all India basis for performance of High court Judges so appointed who still have atleast 10 years left to their retirement, with list in hand NJAC can deliberate and discuss for suitable High Court judges to be elevated to Supreme Court based on ability,performance,integrity,tenure left,etc. This will bring professionalism, consistency and subjectivity to the higher judiciary, as only best-of-the-best will be able to pass all the stages.
The whole argument dissolves to one single point, unless we will have highly motivated, professional, non-partisan individuals manning a system, any or actually every system will fail. It is only with passage of time that with large sample size the efficacy of new NJAC will be gauged.