#dnaEdit: Make NJAC work

By notifying the National Judicial Appointments Commission (NJAC) Act just two days before the Supreme Court hears a batch of petitions challenging its constitutional validity, the central government has signified its resolve to consign the collegium system to history. The two-decade-old collegium system enabled judges to appoint judges but was ridden with allegations of nepotism and lack of transparency. The six-member NJAC will comprise the three seniormost Supreme Court judges, the law minister, and two “eminent members” nominated by a three-member committee comprising the Chief Justice of India, the Prime Minister, and the Leader of the Opposition. However, the notification is not an end in itself — done merely as part of grandstanding before the crucial hearings begin. The rules for the NJAC Act must be quickly notified, meeting of the  high-level committee to select the two eminent members scheduled, and an NJAC secretariat be created and staffed with competent personnel to compile information on candidates for judgeship. Only then can the NJAC get down to the task of appointing judges and filling vacancies. 

The collegium’s legitimacy has been under question in the months since Parliament enacted the NJAC and the President gave it his assent. However, with judges continually retiring from the Supreme Court and from the 24 high courts, the NJAC has to get going immediately. As of date, there are an estimated 320 vacancies in the high courts. Now that the NJAC Act has been notified, further meetings of the collegium would be unconstitutional. If the hearings on the NJAC Act continue for a long period, and the Centre goes easy on setting up the NJAC, the vacancies and the backlog of cases would further increase. However, if the Supreme Court were to stay the operation of the NJAC Act until the final judgment, this might allow the collegium to once again temporarily “arrogate” for itself the power to appoint judges. Such a decision would deny the Centre a chance to prove that the NJAC it created can function better than the collegium. The NJAC Act deserves a chance for yet another reason. It is sanctioned by Parliament in which the country’s citizens have vested the mandate to make laws and amend the Constitution. Despite limitations, it is Parliament that is reflective of popular opinion. Moreover, the passing of the NJAC Act saw overwhelming consensus among all political parties.

The primary criticism of the NJAC Act is that it threatens the judiciary’s independence. The critics worry that the veto power exercisable by any two members of the six-member NJAC and the two “eminent persons” will tilt the balance in the executive’s favour. The onus is on the Centre to debunk these worries and show that the political executive can act in good faith and in a manner that strengthens the judiciary’s independence. Unfortunately, this is where the Centre’s actions hardly inspire confidence. The Gopal Subramaniam controversy saw a series of leaks to the media—which could only have emanated from government circles—clearly meant to force the leading lawyer-turned-judicial aspirant to withdraw his candidacy. 

The Centre’s commitment to the Right to Information Act has also been questioned. The Central Information Commission has remained headless for eight months now and led to a massive pendency of 37,000 cases. Despite the Lokpal Act being passed in 2013, there is no sign of Lokpal being appointed. Such lethargy does no good to the Centre’s cause. The primary grouse of the public with the judiciary is the slow pace of delivery of justice, not the manner of appointment of judges. The squabbles over the NJAC Act must be settled quickly and attention should turn to more fundamental judicial reforms that make justice accessible, affordable and equitable.