January 22, 2025

Is the process of judges deciding on appointment of new judges fair and is anything that takes this away an encroachment on the independence of the judiciary? While the recent judgment of a five judge bench of the Supreme Court in the NJAC case would make it seem that way, it is not the case. On the contrary, the very striking down of the NJAC Act is a decision that seems to convey the message that in matters where the judiciary is concerned, the parliament has no, or little, authority to enact laws as the judges would strike them down on smallest of excuses.

The makers of the Indian Constitution had deemed that the appointment of judges would be done by the executive in consultation with the judiciary. That arrangement worked fine for forty long years till the time came when an overbearing government titled the scale in favour of the executive with the help of a pliant judiciary. Then, glaring examples of favouritism and nepotism were pointed out in the system. That gave birth to the collegium system where only the judges were mandated to select new judges for appointment. Although this system has been working for the last two decades, it is far from perfect. It is opaque and there is no denying that favouritism and nepotism can also creep into this system. Also, with the number of vacancies in high courts all over the country, it also seems that the judges are either not finding time or not finding suitable candidates to fill them. This is hampering the judiciary and cases are piling up. One recent study estimated that it would take 48 years just to hear all the pending cases, let alone the new ones that would be filed in that period. It is really a sorry state of affairs.

If the executive decides that the current system needs an overhaul and the parliament, along with the assemblies of an overwhelming majority of the states support it, how can the NJAC Act be “unconstitutional” and an encroachment on the independence of the judiciary? For, the basic thing to understand here is that in the original Constitution, there was no provision for the judiciary to decide upon judge appointment in isolation. That job was given to the executive, which was enjoined to do so in consultation with the judiciary. Hence, if the judges now say that only they will select judges and cast all sorts of aspersions on the executive or the two eminent persons who would be a part of the NJAC, they are being short-sighted and their only motive would seem to be to protect their turf. The judiciary has to understand that despite the Constitution giving it powers to appoint judges in consultation with the judiciary, the executive had initiated the collegium system to give that power to the judges. Now if the executive, through an Act of parliament, wants to broad-base this selection process, ideally there should be no objection and the NJAC should be given a fair chance. But if the judges now want to appropriate this power solely for themselves, they are being unjust and trampling upon the spirit of the Constitution.