Is NJAC the final best solution?

Judges appointing judges, no other functioning democracy in any part of world allows this to happen except India

In order to keep things simple and straight, it would be desirable to evolve a total new system in the appointments. The new system comprising an exam should be conducted by the Union Public Service Commission for appointments to the High Courts

The Parliament has finally passed the National Judicial Appointment Commission bill and 121st constitutional amendment enabling the establishment of National Judicial Appointment Commission (NJAC). The Act has been notified also after the accent from President of India.

Until now the Collegium system (which had only high judiciary judges) was in place to appoint judges, the NJAC is body of members from the judiciary, the legislature and civil society(possibly legal luminaries) in almost equal proportion. It will have Chief Justice of India as its chairman, two senior most judges of Supreme Court, the Law and Justice Minister and two eminent per sons who will be appointed by committee of Prime Minister, CJI, Leader Of Opposition Lok Sabha or the leader of the biggest opposition party.

The collegium system, to be crudely put, was a system in which Judges themselves appointed judges. During the early 90s it was considered “”best”” appointment system, as was assumed that who better can know the best names to be judge than the members of the judiciary itself. This new Collegium system was brought citing reasons that the earlier system had cases of judges being appointed with some political affiliation and/or inclination.

Some judgements of the apex court did certify this fact, for eg the Additional District Magistrate Jabalpur vs Shivakant Shukla case (1976) in which the suspension of fundamental rights during the emergency was upheld. Judges appointing judges, no other functioning democracy in any part of world allows this to happen except India. When the collegium system was brought it was hailed to be solution to the then problems, it is interesting to note that any new system is considered to be better than previous one, only then it is adopted. With the time passing, the higher judiciary got plagued by nepotism.

It must be appreciated that we did have some of the best and fine judges coming from the collegium system. There have been cases of flaws, but no system is perfect. I am not advocating “”for”” collegium system neither am I against the new NJAC. The constitution is also vague to specify the eligibility conditions for person to be appointed as Supreme/High Court judge.

To keep things simple and straight it would be desirable to bring a total new system in the appointments. The new system comprising an exam should be conducted by Union Public Service Commission for the appointment to High Court, only serving district and sessions court judges with 10 years experience and willing lawyers with 15 years experience with reasonable track record, to be eligible to apply for the post.

It is super rare that a District judge (who has come by passing exam for the state judicial service) reaches the post of High Court Judge. The exam could be single window to make a list of individuals to appointment to High Court, and after competing tenure of say 15 years and evaluation be carried on all India basis for performance of High Court Judges so appointed who still have at least 10 years left to their retirement, with list in hand NJAC can deliberate and discuss for suitable High Court judges to be elevated to Supreme Court based on ability, performance, integrity, tenure left, etc. This will bring professionalism, consistency and subjectivity to the higher judiciary, as only best-of-the-best will be able to pass all the stages.

By Ashutosh Pandey