October 11, 2014 12:21:38 am
The meaning of the word “eminent”, used in the National Judicial Appointments Commission (NJAC) Act, 2014, acquires added significance in light of the fact that the bipartisan approval of the bill in Parliament now only needs affirmation from 15 state assemblies. This appears to be a formality and indeed a foregone conclusion, as the approval awaits only the convening of the legislative assemblies. Thus, any discussion of the faultlines in the act would now be an exercise in futility.
Four of the six members of the judicial appointments commission (JAC) already stand identified: the chief justice of India (CJI), two of his seniormost colleagues and the Union law minister. So, only two members under the category of “eminent persons” are required to be selected, once the president gives his assent to the act. The selection of the eminent persons is to be made by a committee comprising of the CJI, the law minister and the leader of the opposition. Consequently, it would be appropriate to ensure that there is some clarity on the choice of the eminent persons and their qualifications for the job, as the phrase “eminent” is too wide in scope and capable of being misused.
Eminence can be found in various walks of life, such as literature, music, dance, the fine arts, public affairs, administration, science, the natural sciences, medicine, media and governance. Can an outstanding painter such as Jatin Das or dancer Birju Maharaj or a literary figure like Mahadevi Varma be the right choice? Would some eminent musician, such as Pandit Jasraj or Ustad Amjad Ali Khan, be an apt choice? Sachin Tendulkar or Bhaichung Bhutia’s excellence in sports does not qualify them for appointment to the commission. Without there being the slightest doubt about the eminence of the aforesaid persons in their respective fields, they cannot be the proper choice as they are not well versed in the processes of the judiciary. Indeed, eminent persons in the field of fine arts and sport are generally unaware of the nuances of the law. If an eminent person from the above fields is selected, he or she may be swayed by either the views of the judiciary or those of the executive, and an independent assessment of the merit of the proposed appointee would not be possible, thereby defeating the purpose of their presence.
In 2014(1)SCT255(SC), in T.S.R. Subramanian and Ors vs Union of India and Ors, the Supreme Court made the following observation: “As this authority would be performing the above mentioned crucial tasks, it would be necessary to ensure its independence by giving it a statutory backing and stipulating that it should be headed by an eminent person with experience of public affairs to be appointed by the prime minister in consultation with the leader of the opposition in the Lok Sabha.” (Explanation: where the leader of the opposition in the Lok Sabha has not been recognised as such, the leader of the single-largest group in the opposition in the Lok Sabha shall be deemed to be the leader of the opposition). This judgment also settles the issue as to who the leader of the opposition envisaged by the act will be, in the absence of an officially recognised holder of the post.
The eminence for selecting judges should emanate from the experience in the field of law, public administration, constitutional governance, teaching of law or a media person dealing with legal affairs. The examples that would justify the eminence could be a governor, whose conduct in office has been beyond reproach and apolitical. It could also be a former president or vice president whose tenure was non-controversial. There are indeed some retired CJIs — who have devoted their retired life to public service and academics — who would be suitable. It could also be a retired cabinet secretary of repute, or a renowned vice chancellor aware of the law and legal processes.
The presence of the leader of the opposition in the process of selection would ensure that an eminent person of pronounced political linkages does not get selected. While unanimity in the selection would be the ideal situation, several past instances have shown stark differences of opinion between the ruling party and the opposition. This is compounded by the fact that some, if not many, of the persons of eminence in the fields enumerated here do have a political slant. Consequently, the role of the chief justice in the process of selection becomes critical. The chief justice must ensure that the selected eminent persons, whose experience would benefit and enrich the selection process, do not have such leanings and are beyond reproach.
The eminence and experience of the two persons in the eminent persons category could thus play a pivotal role in the event of a deadlock or disagreement in the selection committee.
The writer is a former chief justice of the Punjab and Haryana High Court
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