The Centre’s effort to legislate on judicial appointments without addressing the palpable lack of agreement between the executive and the judiciary on the subject does little to serve the creation of a robust and accountable appointments commission. Just hours before the government had introduced the National Judicial Appointments Commission Bill and the Constitution (121st Amendment) Bill in the Lok Sabha, Chief Justice of India R.M. Lodha spoke strongly against a “misleading” campaign to “defame the judiciary”. “Everyone is out to condemn the collegium system… But to carry on a campaign [against it] just because of allegations against one or two judges is unfair,” he said.
The CJI’s remarks suggest the Supreme Court is yet to be convinced of the need to scrap the collegium, whatever its pitfalls. The Centre, however, has moved several blocks ahead, and is currently debating the nuances of a JAC without attempting to consult the judiciary on a mechanism that clearly requires collaboration between it and the executive. Can the CJI be expected to lead an appointments commission which replaces the collegium that he has so passionately defended? The manner in which this far-reaching proposal that affects the independence of the judiciary — part of the “basic structure” of the Constitution — is being pushed through the legislature is regrettable. Law Minister Ravi Shankar Prasad may have initiated a parliamentary debate yesterday on the proposed changes, but it is the judiciary that his government must speak to, consult with and take into confidence. As eminent lawyer Fali Nariman, whose article inaugurated the ongoing Express Ideas series on judicial appointments, suggested, there should be “meaningful dialogue” between the government and the SC so that a “mutually acceptable solution” is arrived at. Eminent jurists writing in these pages have made a compelling case for a mechanism that insulates judges from politics.
These concerns must be weighed and deliberated with the CJI and the SC first, failing which the sword of judicial review may dangle over the NDA’s freshly minted JAC. If the SC strikes down the JAC, not only would executive-judiciary relations hit a new low, but a needless constitutional crisis would also be precipitated. The current controversy over certain appointments to the higher judiciary presents an opportunity for reform: to create an accountable system that respects judicial independence while making the case for meritorious judges, jurists and lawyers. The lack of transparency in the collegium’s functioning is obvious, but the way forward is apparently not. The government would do well to reach across the aisle to the SC and assuage its fears of executive encroachment before setting up the JAC.