Go for 5-member NJAC

A division bench of the Supreme Court comprising Justices S K Kaul and K M Joseph has flagged the issue of delay in judicial appointments. The bench set a time limit of six months within which the recommendation for appointment must be cleared, provided it has been approved by the collegiums of the High Court and the Supreme Court, and the government.

The Supreme Court emphasised the need for consultative process in judicial appointments. It is time the executive and the judiciary take a cue from the order and find a long-term solution to the problem.

The provision for appointment of judges of the Supreme Court and the High Courts has been made under Article 124 and 217 of the Constitution, respectively. However, there was a controversy with regard to the primacy of judiciary or executive over the other by virtue of term ‘consultation’ used in the said Articles.

This controversy led to the establishment of the collegium system which was introduced by the Supreme Court over the course of the years involving three landmark judgements popularly known as “three judges cases”.

In the case of S P Gupta v Union of India, popularly known as ‘The First judges Case’, the apex court drew a distinction between the word “consultation” and the word “concurrence” and said that the two cannot be used synonymously.

This provided a non-binding nature to the opinion by given the Chief Justice of India to the executive. However, it further held that such deviance from the opinion provided by the CJI is to take place only in exceptional situations and the same could be subject to judicial review.

This position of law was questioned again in 1993 in the case of Supreme Court Advocates on Record Association v Union of India popularly known as “The Second Judges Case” which overruled its earlier decision in the first judges case.

In the second case, the SC held the view that the word ‘consultation’ for the purposes of Articles 124 and 217 is synonymous to ‘concurrence’ and thus gave a binding value to CJI’s opinion to the executive. Moreover, the collegium was established in the said case and the CJI was to formulate his opinion regarding the appointment and transfer of judges through such a body.

Later in 1998, a more detailed picture of collegium came about in the ‘Third Judges case’, in which all the nine judges held that ‘consultation’ for the purposes of Articles 124 and 217 is inclusive of the opinion of plurality of judges and sole opinion of CJI cannot said to reflect the opinion of other members of the collegiums.

It further clarified that the collegium would consist of CJI plus four senior-most judges for the appointment of a judge of SC and CJI plus two senior-most judges for the appointment of a judge of HC.

These judgements resulted in the ‘Memorandum of Procedure’ (MoP) for the appointment of the judges of the High Courts and the Supreme Court and the Chief Justice and the CJI. The MoP provides for timeline for approval of various stakeholders – the Chief Justice, the chief minister, the governor, the law minister, the CJI.

However, nothing is mentioned as to what should be the timeline when the consultation process has been completed and the prime minister is to advise the President for issuing a warrant of appointment.

This effectively means that the government through the prime minister can sit on it as long as it wants. This, primarily, has led to judicial vacancies and consequently, delay in disposal of cases with ever-increasing workload. In such a scenario, administration of justice is bound to fail.

At present, the High Courts are functioning at nearly 50% of their total sanctioned strength of 1,079 judges. There are 410 vacancies while 669 judges are currently working in the High Courts. As against 410 vacancies, 213 names are pending with the government/Supreme Court collegium.

It leads for one to wonder if these bodies have failed to work in a time-bound manner and hence, in their constitutional duties. A robust mechanism needs to be brought in place to ensure that judges are appointed in time and litigants do not suffer due to a lacuna in the law.

The way forward

It is pertinent to note that in 2015, the government introduced the National Judicial Appointment Commission (NJAC) for the appointment of the judges. It was to be a six-member body comprising the CJI, two senior-most judges of the Supreme Court, the Union law minister and two eminent members from the society.

The bone of contention was that the appointment could be rejected if opposed by two members. It was struck down as unconstitutional on the ground that it impinged on the independence of the judiciary.

However, an improved version of the NJAC could have solved the problem had it been a five-member body comprising the CJI, two senior-most judges of the Supreme Court, the Union Law Minister and one eminent member from the society.

Further, the opposition to a candidate could be passed if three members opposed him/her. This would ensure that at least one judge had opposed it and the judiciary had primacy in securing judicial appointment. In fact, this view was echoed by the National Commission to Review the Working of the Constitution (NCRWC), headed by former CJI M N Venkatachalaiah in 2002.

This would not only protect the independence of the judiciary but also ensure that the civil society and the government are adequately represented keeping in line with bedrock principle of consultation in democracy.

Wrongdoings from any stakeholder could be brought to light by the other stakeholder thus keeping the principle of checks and balances intact.

(The writer is with National Law School of India University, Bengaluru)