Libertatem Magazine

A Probe into the National Judicial Appointment Commission: Discerning the mystery behind ‘Eminent Persons’

Contents of this Page

India has seen many risings in the past and is one of the most powerful countries in the world. India has now a growing economy and a powerful defence which protects our country and makes it sound and secure, economically, politically and culturally. The Constitution of India is so framed that no person or institution of this country has been that capable so as to overpower the laws of the country and make it a dictatorship or eventually a failed state, and while implementing this, the Judiciary has played a major role. What the judges decide is considered to be the final decision in a court of law, unless there is a higher court of appeal in such matters. In India, there is a three tier system of judiciary, and the Supreme Court of India is the court of the last appeal. The Supreme Court of India is a constitutional court and the orders of the Supreme Court are binding on all the subordinate courts as per Article 141 of the Indian Constitution. The judges appointed in the Supreme Court as the Chief Justice of India (hereinafter referred as ‘CJI’) and other Judges are the most elder and experienced persons in the field of law. A judge of a Supreme Court has to be a distinguished jurist; a judge of one high court or more, for at least 5 years; or an advocate in a high court for 10 years or more.

“An Independent Judiciary begins with who appoints what calibre of judges”

  • Granville Austin

The main problem is with the appointment of the judges in various Constitutional courts in India, and the procedure to be followed while appointing the judges in these courts. Referring to the matter of Supreme Court Advocates on Records Association vs. Union of India or The Second Judges Case, it was held that the formation of a separate collegium system would be befitting to settle this debatable matter.  . The Supreme Court said that there needs to be a broader prospect in the appointment of the judges and the scope has to be widened. The collegium system in the country was adopted after the Second Judges’ case in 1993. In the year 2013, there was 99thAmendment to the Constitution, which introduced Article 124 A and made amendment to Article 124 (2)(a) of the Constitution. This led to the creation of the Judicial Appointments Commission, where Judges would be selected by the President in consultation with the Judges of the Supreme Court and the High Courts in India.

In 2014, the Parliament of India passed the National Judicial Appointments Commission Bill (NJAC) in both the houses of Parliament and it got assent from the President. NJAC would select the judges for the constitutional courts in India, replacing the erstwhile Collegium system of the appointment of judges. The NJAC, as per the Act will consist of the CJI; two other senior judges of the Supreme Court after CJI; Union Minister of Law and Justice and 2 eminent persons, the 2 eminent persons were to be selected by the CJI; The Union Law minister and a leader from the opposition. Now, the golden question was, ‘WHO ARE EMINENT PERSONS?’ It was not defined in the Act per se and this led to the filing of various writ petitions all in this regard. The word ‘eminent’ has been left in loose hands with a wider scope that can lead to various possible interpretations. The word eminent needs to be defined in the NJAC Act, to make it overcome ambiguity with respect to the matter.

India is a developing country and India has flourished in all fields, be it Law, Science, Literature, Art, Music, Culture etc. India has, since its inception, produced great and distinguished people who are brilliant in their respective fields. Sachin Tendulkar, Mahesh Bhupati, Manna Dey, Amitabh Bacchan, are some of the innumerable celebrated personalities of the country. Can we ask for Mahesh Bhupati to be appointed as an eminent person in the commission, him being an eminent person in his field?  If that’s done, there wouldn’t be much point in being specifically qualified in the field of law to understand the legal system better. The eminent persons must be from the field of Law or from Public Policy making bodies etc. The word eminent cannot be in such ambiguity that the qualification of two eminent members is not clear.

The eminent person is selected by a committee consisting of the CJI, Prime minister and also a leader of opposition. This also inflicts a major sense of thought amongst the people of this country. The question is, whether the Judicial System of our country is slipping into the hands of the political parties? The answer is still under the mist, as we have faith in the Constitution of India, but we cannot disagree too! Though there will be the Chief Justice of India supervising the matter and the appointment of the two eminent persons, still it can lead to a political influence on the selection of the two eminent persons and indirectly, on the selection of the Judges of the Supreme Courts as well as the High Courts in the country. With the arrival of the NJAC, the Judicial Appointments have now become like a Pandora’s Box. Most of the political parties in India greeted this and quoted it to be the most transparent system of selecting a Judge for the Supreme Court and other High Courts in India. Corruption has become a major problem in India and is decaying the roots of Indian legitimacy and judiciary too which brought the thought of NJAC apparently. There is a strong discrepancy between the checks and balances of the state to stop corruption. Judiciary being the proper police to check this, there needs to be an awakening to prevent unnecessary growth of might in an individual. The collegium system also had its faults and came under heavy scrutiny after the controversy of Justice P.D. Dinakaran. In 2009, Justice P.D. Dinakaran had to resign from his post of a Judge of the Supreme Court, being recommended by the collegium system, after cases of corruption and fraud came up against him. Hence, here it has been decided that the executive will also have a say in the matters of the appointment of judges in the Constitutional Courts of India, as the judges shouldn’t decide which judge to choose solely and ought to consult others.

The NJAC is still a debatable topic with lot of faults in it, and haziness which the Apex Court has to decide and pass the judgement and make the law stricter and clearer with respect to the ambiguity that it holds currently. The word ‘eminent’ as enshrined in the NJAC Act should be made perfect in the minds of the people. The case Supreme Court Advocates on Record Association & Anr. v. Union of India (Writ Petition Civil 13 of 2015) has been recommended to a five judge bench to put more light into this vital matter.

About the Author