Opinion The collegium is dead!

In its current avatar, the NDA government’s proposed national judicial appointments commission does not address the concerns of transparency and accountability that triggered a broad, public re-think on the functioning of the judicial collegium. The National Judicial Appointments Commission Bill may have been passed by Parliament, but the government must now convince the Supreme Court that it adheres to the basic structure of the Constitution. The commission will comprise six members — the chief justice of India as its head, two senior SC judges, the law minister and two “eminent” persons to be selected by a group consisting of the prime minister, leader of the opposition in the Lok Sabha and the CJI. Law Minister Ravi Shankar Prasad, however, has not offered a convincing explanation in Parliament of the criteria for selecting these two personalities. It is also unclear whether they will be appointed by consensus or majority.

In response to a question about whether the process for selecting eminent members would be susceptive to RTI queries, Prasad stated he “could not answer” at the moment, referring subsequently to the rule-making power of the NJAC to carry out its functions. If the composition of the commission is embedded in the Constitution, can its selection process be relegated to statutory rules that leave room for wide discretion? The role of “outsiders” in the NJAC is significant because the bill allows two commission members to veto a candidate’s appointment. An eminent member favoured by the government could well toe the line of the law minister in the NJAC. As a result, judicial primacy in appointments could be seriously threatened.

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Equally, the two-member veto rule ensures that the government cannot force a candidate on the judiciary either. But it could result in a race to the bottom, where the least common denominator is used to pick judges whose candidature is acceptable both to the executive and the judiciary. Judicial independence is not simply about who gets to select judges to the Supreme Court and high courts. It is a basic constitutional tenet and the public has a right to a fearless, non-partisan and independent-minded judiciary. Just as corrupt individuals must be kept out of the judiciary, the selection process must favour the most meritorious judges, lawyers and jurists, among whom are vocal dissenters and outspoken critics of government. This NJAC does not, unfortunately, assure a better system. It simply replaces an opaque collegium with another institution whose selection process may turn out to be non-transparent.