In a judgement whose echo will ring for some time to come, the Supreme Court on Friday struck down as “unconstitutional and void” the amended National Judicial Appointments Commission law which was among the first pieces of legislation passed by the Modi government. The BJP-led government scrapped the proposals of the earlier UPA regime to allow for a commission to select judges for the HCs and the SC that would consist of the Chief Justice of India and the two judges of the top court next in seniority to the CJI, besides the Union law minister and two “eminent” persons to be chosen by a committee consisting of the CJI, the PM and Leader of the main Opposition party. The panel members would carry a veto. This was the clearest sign that the government could always torpedo a name moved by the judges and undermine judicial independence.
Since 1993, top judges headed by the CJI ran the “collegium” system which appointed judges. This system was seen as prone to corruption. Demands for judicial accountability followed, and the NJAC law came into being. The presence of the law minister and two non-judicial persons wielding a veto sounded the death-knell of the NJAC when it was challenged in the SC. Even before the five-member Constitution Bench returned its four-to-one verdict, India’s top jurist, Fali Nariman, and lawyers like Ram Jethmalani had strongly contended that the NJAC did not have safeguards that would guarantee the independence of the judiciary.
The top court too has taken this view. It has contended that an independent judiciary constituted a basic feature of the Constitution and couldn’t be tampered with without violating the Constitution. Experts have also brought to light the fact that since the government was the biggest litigant in India, it would just not do for a member of the executive (the law minister) to be on the selection panel.
The government says that for the SC to throw out NJAC is to curb the “sovereignty” of Parliament. This is self-serving because it is the duty of the SC to pronounce on the legal validity of a legislative enactment. On November 3 the top court will pronounce itself on ideas from different quarters on ways to improve the collegium system. Ideally, it should constitute an independent body — possibly with a judicial preponderance — to select judges for the high courts and the apex court.
