It is welcome news that the law ministry is ready with a draft bill to amend the Constitution for setting up a National Judicial Appointments Commission (NJAC) to replace the Supreme Court collegium, which comprises the country’s top five judges who recommend names for the appointment of judges to the government. The NJAC is proposed to be a six-member body headed by the Chief Justice of India, as also the law minister and the leader of the opposition in one of the Houses of Parliament, along with two senior SC judges and an eminent jurist to be nominated by the President. While it may take time to build up the political consensus to bring about the amendment, the change in the procedure of the appointment of judges has long been necessary. The NJAC will not only broad-base the process of the appointment of judges to the higher courts, but also will cure the flaws of the procedure, such as lack of transparency, whereby the Supreme Court collegium decided the names for the appointment of superior court judges.
No clear and cogent reasons have been available as to why the Supreme Court collegium chose a particular judge over another. In the absence of transparency it has not always been clear that a fair procedure for the appointment of judges had been followed. This has particularly been true when choosing members of Bar for the position of high court judges, which selections have been vitiated by arbitrariness and by a pick and choose policy, which does not always have merit as a concern. Selections have been made that left a lot to be desired and this has been reflected in the spate of cases of judicial corruption as well as those of judicial incompetence. However, any new procedure that will be adopted has to ensure judicial independence and judicial integrity. One of the major flaws in the system of judicial appointments that can arise may be the politicisation of this process with the involvement of politicians. The appointment of pliable judges through the new process may be as bad or worse as the current system within which the senior judges have a monopoly over the judicial appointments. The superior judiciary in India has played a major role in shaping institutions and advancing the public good. Any new system of appointment must ensure fairness and the integrity of process so that the administration of justice retains its high place in the eyes of the public.