President Pranab Mukherjee has given his assent to the 121st constitutional amendment bill, altering the method of appointment of judges to the Supreme Court and the high courts, but the government will now require his approval for the National Judicial Appointments Commission Bill, 2014, for the new mechanism to come into force. The existing method of appointments was created by judicial pronouncements, and was a departure from constitutional text. The amendment removes this problem. The existing mechanism is dominated by the judiciary and therefore lacks accountability — the amendment act addresses and mitigates this concern. Yet, several questions about the new institutional architecture remain.
While the legislative change will bring an end to judicial dominance in the matter of appointments, fears have been stoked of it being replaced by executive diktat. After the 2014 Lok Sabha elections, these apprehensions have been sharpened, given that a stronger executive may also take on a more muscular role within the appointments process. The controversy over the proposed appointment of Gopal Subramaniam to the Supreme Court last year seemed to confirm the unease. The official grounds of his rejection by the newly elected government were not made public. In addition, concerns were raised about the lack of clarity over the process of appointments. The NJAC Bill does not clarify how criteria such as “ability” and “merit” will be considered and balanced. Additionally, the power to frame regulations regarding these issues will rest with the proposed NJAC itself. This is against the tenets of good public administration, as the rule-making body is also the one that applies these criteria. The appropriate solution would have been to insert them in the law itself. There is a need for addressing these concerns by ensuring greater transparency in the selection and appointment process. As the two pieces of legislation stand today, there are well-founded fears that judicial independence could be curbed.
The provisions of the constitutional amendment and the NJAC Bill, 2014, will reportedly be challenged before the Supreme Court. The final word on the validity of the new laws will therefore be pronounced by the apex court. In considering the merits and demerits of these laws, the court will have to strike a fine balance between two issues of great constitutional import. On the one hand, it must firmly uphold the judiciary’s independence. On the other, it must appear neutral and unbiased when dealing with an issue that strikes at the core of its own institutional power.