Parliament has spoken. By landmark legislation, it has amended the procedure by which members of the superior judiciary are appointed in India, and ended the primacy that the judiciary had accorded to itself in the appointment process. The idea, the government says, is to broad-base the appointment of judges in the Supreme Court and the various High Courts with participation from the judiciary and the executive and from among eminent persons to ensure greater transparency, accountability and objectivity in the process. The legislative venture is undoubtedly a legitimate exercise as there is wide support for the view that the time has come to replace the opaque collegium system with a transparent mechanism. However, the moot question is whether in the process any injury has been caused to the judicial limb. On the face of it, with an enabling amendment to the Constitution, and a law setting up the National Judicial Appointments Commission, the new procedure seems to have been set. There is apparent parity between judicial nominees (the Chief Justice of India and two senior-most Judges) and executive representatives (the Law Minister and two eminent persons chosen by a panel comprising the CJI, the Prime Minister and the Leader of the Opposition) in the six-member NJAC. However, any two members can veto any decision. While the veto could act as a restraint on a decision being pushed through by one bloc, it could be seen as undermining the judicial members' opinion. Also, the CJI can be outvoted by the political class when it comes to choosing the ‘eminent persons’.
Several significant aspects — the criteria of suitability of judges, the conditions for selection, and procedures on consultation with other judges and eminent advocates, and the manner of eliciting the views of the Governor and Chief Minister — have been left to regulations to be framed by the Commission. Giving the power to amend these regulations to a panel that will itself keep changing from time to time instead of being cast in law may undermine judicial independence, as the norms could be tweaked for reasons of expediency. And it hardly needs to be emphasised that the independence of the judiciary is part of the basic structure of the Constitution. The advisability of enacting the NJAC Act before the Constitution Amendment has received the requisite ratification from half the State legislatures is also under question. If the legislation fails judicial scrutiny, the question will arise whether the government was too hasty in putting together the bills. Perhaps, a process of broader consultation could have helped the cause better. Ultimately, there should be a healthy balance between having a more participative system and preserving an independent judiciary.