Dummy's guide to NJAC judgment

On October 16, 2015, the Supreme Court of India declared the National Judicial Commission Act, 2014 and the Constitution (99th Amendment) Act 2014 to be unconstitutional and void, and the system of appointment of judges existing prior to the aforementioned laws operative.

The criticism against the collegium system of appointment is broadly as follows:

1) The system lacks transparency 

2) Nepotism has creeped in, many meritorious judges don’t make it to the Supreme Court

3) There is no clear set of rationale on whose premise appointments are made

4) That the very concept of judges appointing judges is absurd and unknown to any other constitutional democracy

5) That the collegium does not originate from the Constitution of India.

The National Judicial Commission Act, 2014 and the Constitution (99th Amendment) Act 2014 created an appointments commission comprising three senior most judges of the Supreme Court of India, the law minister of India and two "eminent persons" who would be nominated by a committee consisting of the PM, the chief justice of India and the leader of Opposition in the House of the People, or where there is no such leader of Opposition, then the leader of single largest Opposition party in the House of the People.

As Gautam Bhatia a lawyer and legal scholar par excellence aptly summarises here, the Supreme Court struck down the aforementioned Acts amongst other reasons on the premise that judicial primacy in appointments is a part of the basic structure of the Constitution of India and since these acts accorded veto power to all members of this commission, the Acts were unconstitutional. I agree with this part of the judgment, although I believe that both, the collegium system and the poorly drafted NJAC Act both leave a lot to be desired.

The judgment intriguingly concludes with the following sentence:

"and to consider introduction of appropriate measures, if any, for an improved working of the 'collegium system,' list on 3.11.2015."

This is rather intriguing because:

1) There was no scarcity of analysis/criticism during the course of the case about the drawbacks of the collegium system.The collegium is a product of two judgments; it could have easily been modified/tweaked by another judgment.

2) Not only could the Supreme Court have asked for suggestions during the course of hearings in the case, this Times of India report states that the court did ask for suggestions. It is pertinent to quote the relevant portion of the this article:

"Senior advocate Fali S Nariman, lead counsel arguing against the National Judicial Appointments Commission (NJAC), on Wednesday told the Supreme Court that he would agree for a judge-majority five-member NJAC which has the Attorney General as a member instead of the law minister.

Nariman's response came on a request made by a bench comprising Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, which had on Tuesday sought suggestions on reading down the NJAC provisions and also corrective measures to improve functioning of the collegium system."

3) This decision inviting suggestions assumes that the Government of India will not want to file a Review or a Curative petition seeking reconsideration of the Judgment of the Supreme Court. The chances of success in such remedies are irrelevant.

4) Gautam Bhatia also pointed out in a conversation with me that the collegium was the creation of a nine-judge bench and it will be improper for a five-judge bench to review its functioning.

5) What is also intriguing is, why stop at seeking suggestion from the Petitioners and the government of India alone? To make the exercise truly purposeful suggestions should also be sought from judges of all high courts.

To assume that the government will come before the court with a sense of resignation and wait for the court to pronounce a verdict on its "suggestions" would be naïve.

It will not be surprising if the Attorney General turns on the third to say that the act under challenge represented their suggestions and that they believe that the very concept of a collegium is undesirable. They make seek time to study the judgment and perhaps pass another legislation, which will take, into consideration the flaws pointed out by the court in the NJAC Act.The Attorney General may say that it is that legislation which will represent the government’s "suggestions" and views.

The court may have wanted to indicate that it is not closed to the idea of improving the system of appointments but the whole exercise seems to be odd and futile for the reasons given above.