Is NJAC eminent enough to replace the collegium system?

Is NJAC eminent enough to replace the collegium system?

Introduction:

For everyone that opposed the collegium system for being opaque, all they wanted was a more transparent system of judicial appointment. With National Judicial Appointments Commission or NJAC came yet another system full of doubts, debates and petitions against it. In a letter to PM Modi, Chief Justice of India H.L. Dattu categorically refused to participate in the National Judicial Appointments Commission. This has further delayed any chances of constituting the new judicial appointments body. He is worried about the validity of the new system and of course the "two imminent person" debate also hinders the commencement of NJAC.

In support of NJAC:

1. The biggest protest against the NJAC is regarding the inference of the government in the selection and procedure of the judges of apex and state high courts. However, it is to be noted that the new system does not call for a complete authority to be given to the government executives in the process. The new system is to constitute of six-member panel headed by the Chief Justice of India and will include two senior-most Supreme Court judges, Union Minister of Law and Justice and two “eminent persons” nominated by a committee comprising the Prime Minister, CJI and Leader of Opposition in the Lok Sabha or leader of the largest opposition party in the Lok Sabha. There is neither a final say by the government nor is it their sole decision that would count. The new system promises a better panel of judiciary that should change the existing system of lagging judiciary.

2. The persisting judiciary is in need of change if we seek justice in thousands of pending cases. The old collegium system was opaque, arbitrary, biased and of course there was side stepping merit for caste and regional representation leading to judiciary corruption. We have judges and lawyers with mindsets of the orthodox society. It is clear that mere educational qualifications are not needed in an eminent judge.

Against NJAC:

1. The sole purpose behind the abolition of the traditional collegium system is the direct authoritative interference of the government in the judiciary. The rest of the reasons are as vague as the new system itself giving space to "two eminent persons" according to the government. Never has a candidate lacking or certified lacking in integrity or character been made a judge. The executives already had a say in certifying the character and integrity or the candidate but this addition to the panel of selection committee is sheer interference which cannot be allowed.

2. Why does the government need a say in the judiciary appointment? The petitioners are not wrong in their claim accusing the government of mala fide and predicting that the new system would erode judicial independence as described in the Constitution. Are we headed towards a change in the entire constitution of India? We definitely could do with a few amendments rather than eradicating the entire system.

3. According to lawyer Ram Jethmalani NJAC is evil and irksome: "The government ought to have said with all honesty that it was trying to demolish the collegium system, go back to the pre-1993 system. I had to become a refugee in my own country because of what four judges, appointed in the pre-1993 period did." His reference to the Emergency era ruling, which suspended citizens' right to life and liberty is a prediction of what can happen is judiciary is to be intervened by those that know nothing about it.

4. We cannot ignore the fact that NJAC Act was illegal since it was passed without first amending the Constitution. The Parliament had passed both the amendment and the Act simultaneously according to the petitions this amounted to invalidating the entire parliamentary process. Another claim says that it would tinker with the independence of the judiciary and the collective opinion of the three judges in the NJAC could anytime be subject to being vetoed out by any two other members of the new committee.

Conclusion:

Though the system is in need of change but a haste move to complete replace a system that has been operational for more than a decade can have its own consequences - some that we are not yet ready to face. I agree with senior advocate Bishwajeet Bhattacharya who calls for a stay in the operation: "I will plead the Constitution Bench to stay the operation of the notification. It is in the interest of both the parties that the notification is stayed till the time the court rules on its validity. If the court ratifies the government’s move after hearing both the parties, the notification can always be revived but if the NJAC is held to be bad in law, the notification is automatically doomed forever. I cannot fathom the haste in issuing the notification two days before the court starts hearing the clutch of petitions challenging its validity."