Wednesday, August 20, 2014

Questioning the National Judicial Appointments Commission Act, 2014 -- Guest Post by Smaran Shetty

With the passage of the 121st Constitutional Amendment Bill and the attendant National Judicial Appointments Commission Bill, the collegium system of appointments, now 21 years in the making, is sought to be replaced by the newly created National Judicial Appointments Commission (‘NJAC’). Unsurprisingly, concerns over this new method of judicial appointments have been articulated both in terms of a perceived incursion into judicial independence as well as the logistical uncertainties for the NJAC, which is tasked with appointments to all courts of the higher judiciary. This stance is tempered with a candid admission as to the limitations of the collegium system, which as is argued, although imperfect, still remains a relatively better mode of appointments in comparison to the proposed NJAC.

All of these fears are valid, from a stand point of preserving a constitutional balance intended to secure an optimal degree of judicial independence as well as questions of efficacious constitutional design. I wish to however move away from these macro level concerns, voiced in terms of how the NJAC may eventually vote, the undefined criteria of appointment of “eminent persons”, the dangers of a veto and possible executive capture of the NJAC. In this post, I wish to discuss certain alarming provisions within NJAC Act, that should alert us to the possible ways in which pervasive legislative control may be exercised over the newly contemplated appointment procedure.  

The NJAC Act, 2014 is passed in pursuance of the newly inserted Article 124A and 124B which establishes and gives to the National Judicial Appointments Commission constitutional status, while at the same time describing its composition, functions and powers. Under the NJAC Act, the procedure to be followed for appointments to the High Court as well as the Supreme Court is clearly spelt out. Most importantly, in furtherance of the newly inserted Article 124C, the NJAC Act, vests both the Central Government as well as the Commission itself, with rule making power to further define the manner in which appointments are to be made. 

The rule making power of the Central Government is rooted in Section 11, which provides for the power to fix the remuneration and other service conditions for the members of the NJAC. Section 11(2)(c), in the nature of a residuary clause, considerably expands this rule making power by stating “any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.” On the other hand, the rule making power of the NJAC itself is rooted in Section 12, and empowers the Commission to prescribe regulations for the criteria to be considered for judicial appointments, the criteria for consulting members of the bar for such appointments and other important substantive and procedural questions.

An immediate concern, given the wide and overlapping rule making power of the Commission and the Central Government, is a potential for conflicting rules, and an uncertainty as to which set of regulations would prevail, if such a conflict were ever to arise. This fear is not entirely unfounded, since the Law Ministry is actively involved in the functioning of the Commission. The Law Minister himself is a member of the NJAC, and the Ministry is tasked with promptly forwarding details as to prospective judicial vacancies, to ensure timely appointments. Considering this intimate interface between the Law Ministry and the NJAC, it would be natural to foresee a situation in which the Law Ministry seeks to regulate the functioning of the NJAC, which may potentially over lap, and worse still, conflict the rules of the Commission.

More troubling however is Section 13 of the NJAC Act, which subjects the rules, made in furtherance of this act (both by the Central Government as well as the NJAC) to alteration by both houses of parliament. Sub-ordinate legislation drafted by the executive is not subject to a uniform standard of review by Parliament, and may vary depending on the terms of the statute vesting such power. Generally however, statutes require that drafted rules be laid before both houses, and changes may be made by the parliament within 30 days of such laying (resembling Section 13 of the NJAC Act). Rarely, is the operationalization of such rules subject to prior parliamentary approval. Sub-ordinate legislation drafted by judicial bodies under the Indian constitution are qualitatively distinct, and are not subject to similar oversight. For instance, under Articles 145 and 229, the Supreme Court and High Court respectively, are granted rule-making powers for the discharge of their constitutional duties as organs of the higher judiciary.

Although the scope this rule making power varies, the purpose behind the vesting of such power in constitutional courts, is to empower them to draft such regulations as may be necessary for the proper discharge of their duties. Towards that end, as well as to further secure judicial independence, the rules drafted by the Supreme Court under Article 145 are not made subject to the Union Parliament, but instead subject to the confirmation by the President. Similarly, rules made by the respective High Courts are not subject to modification or approval by the State Legislatures, but are subject to approval from the Governor of such a state.

Considering the proposed NJAC is a constitutional body, and that it performs a vital judicial function, without however being a judicial organ, the rules made by the Commission, should not be subject to parliamentary modification. The ability of parliament to alter, in any manner, howsoever insignificant, the regulations of the commission, seriously impedes the ability of the NJAC to determine for itself, the relevant criteria to be considered for the manner and method for judicial appointments. This is not to suggest that the regulations of the NJAC would be subject to no safeguards whatsoever. Under Article 145 and 229, rules drafted by judicial organs continue to be subject to judicial review, and may be struck down if repugnant to any constitutional provision. The rules of the NJAC, should therefore be treated of such a like nature, and should be made subject only to judicial review.

Section 13 of the NJAC Act, should then alert us to the indirect, yet significant manner in which the government may continue to retain unjustified supervisory powers over the Commission. If the rationale for the creation of the NJAC is that judicial appointments must be reclaimed from the exclusive domain the judiciary, then surely, it must also be insulated from governmental interference in the finer points of its functioning and parameters of deliberation. Importantly then, is the need to debate the constitutionality of the NJAC, not merely in broad claims of judicial independence, but in the more minute details of how such functionaries are to operate and whether the intended constitutional space for such a Commission to operate in, is encumbered by unwarranted government presence.

Interestingly, Arun Jaitley (the then leader of opposition) delivered a strident and informed speech in support of the new appointment procedure. Among the many valid points he made, he called for a shift away from “impressionistic” judicial appointments towards a more objective criteria for assessing prospective judges. He illustratively stated that the proposed commission while deciding the merits of a candidate should look into his/her performance at the bar, academic and scholarly work, record of reported judgments (if any) and probity as a judicial officer. These are no doubt valid points of consideration, and will surely form the basis of further regulation of the NJAC. If these criteria are meant to substitute judicial opaqueness in appointments, which they undoubtedly should, then these criteria must equally not be subject to suspect alteration by the Union Parliament.
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