By Rajashree Aryabala Tripathy, KIIT Law School, Bhubaneswar.
Article 124(2) states, whenever there is a proposal for appointment of the Supreme Court Judges, it will be done by the President of India in consultation with other Judges of the Supreme Court. But time has changed and the judiciary, executive and legislature have to take steps according to the need of the society. The rate of corruption and adulteration in all departments is increasing day by day. We need a strong judiciary for our country. It is now proposed that a new Commission will be formed for appointment of judges to higher posts, which will be named as the “National Judicial Appointments Commission” (NJAC). For this reason, a Bill has been drafted, which contains the constitution, regulation, function and role of that C omission. The main aim of this Bill is to bring transparency in the selection process, along with an accountable government.
According to the drafter, the Commission will be formed with 6 members, namely Chief Justice of India, two Senior Judges of Supreme Court, the Union minister of Law and Justice and two eminent persons. The role of the commissioner will be entail the following:
1. Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
2. Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court;
3. Ensuring that the persons recommended are of ability and integrity.
But for this there is a need to amend the Constitution to amend Article 124, which will be 99th constitutional amendment. On last 13th and 14th august in both Rajya Sabha and Lok Sabha the amendment bill has passed.
The main problem arises when a thing comes to mind about separation of powers between three departments of nation. If this bill will enacted and constitutional amendment will be done then the sovereignty, independence of judiciary will come to an end. It will be forced by legislative and executive power. The politics will play the main role in the selection process. The doctrine of separation of power is the basic structure of constitution . It strictly prohibits the encroachment of sphere of three departments. So if this bill will come in to play there will be violation of doctrine of separation of power and it will be named as invalid.
In the other side of this scenario this bill is going to fulfill all the demands of judiciary. There are many vacancies in many High Courts regarding the higher position, even in Apex Court also. By formation of this commission the vacancies can be fulfilled by eligible and eminent judicial persons. It will bring transparency and accountability in selection process. But, by this bill the political pressure will drive the selection of judges, where as in collegium system judicial appointment is done only with judicial independency. The judges of higher position are well aware about the sphere of judiciary and so that they can place appropriate talent in proper stage to conduct judicial work in collegium system. Collegium system is mainly the system where the chief justice of India, the other judges of Supreme Court, the appointment of chief justice of High Courts and the transfer of the judges are conducted by the president of India and other four eminent judges of the Supreme Court. The involvement of political power in to judiciary sphere is a great threat to the independence of judiciary. By this the selection process of the judicial will also delay.
There are many controversies and variation in opinions about the effectiveness of this bill. Many PILs have been filled regarding constitutional validity of this bill. Many great eminent lawyers are against this bill, still more support it. This bill is not only in judicial and in political department is a thing to be judged carefully but the future of judicial system of our country fully depends on this. Once this bill will applicable then the whole country will be regulated by political power and judicial system will lose its existence. It will take decades to change the system in case of any lacuna. Now the stage of India is such that it needs a proper regulation. The number of criminals and graph of growth rate of crimes are increasing rapidly. At this time our country don’t need a try and believe method. A wrong step can ruin the future of our country. The effectiveness of this bill is a great question mark about the future of judiciary of our country.
In the Collegium process, there is a lack of transparency, but in the Judicial Appointments Commission process, there will be violation of the Doctrine of Separation of Power. But as per my thinking, this Bill is not a treatment for lacuna in the Collegium System. The government can think of more solutions. Transparency and Accountability is the main demand of public in every case; these two things should be emphasized upon, while deciding about the appointment of Judges. This is a crucial and delicate time to take good decisions for our country, even if we have to put in some extra time; the outcome should be for the benefit of the country at large.