In April, while 60 lakh cases remained pending at various High Courts, 30% of the seats remained vacant, according to a report published by the Department of Justice.
Collegium system versus NJAC
The problem of appointment of judges, which is linked to the problem of pendency of cases, has always been a matter of debate in India. Delays in appointments are often caused by a standoff between the executive and the judiciary. This was exacerbated when the Supreme Court struck down as unconstitutional the National Judicial Appointments Commission (NJAC) Act, 2014, and the 99th Constitution Amendment, 2014, which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. The Court held that the collegium system, which is in place, protects the independence of the judiciary. Since the world over, the judiciary is not the sole body which appoints judges, this argument has always appeared weak.
Furthermore, the collegium system has frequently been criticized for its lack of accountability and transparency, and the prevalence of nepotism. Parliament in its wisdom enacted the NJAC Act. The proposed body would have replaced the collegium system. In order to give it credence, the NJAC was to be headed by the Chief Justice of India, and include the Law Minister, two eminent persons, and two senior judges.
The judiciary contended that the NJAC would give the government excessive control over selection of judges, therefore undermining its independence. The Court determined that the NJAC may jeopardize impartiality and objectivity in the appointment process, thus endangering judicial independence. However, a number of legal professionals, including former judges, have argued that the NJAC is a better system. If appointments of judges have to take place faster, we need to bring back the NJAC. Prior to any plan being finalized, all relevant parties, including the judiciary, legislature, civil society, and Bar Associations should be consulted.
Lessons from other countries
Upon reviewing the process of judicial nominations in other nations, we find that most of them are made by a committee established by the administrative and legislative branches of government. For instance, the Constitutional Reform Act, 2005, introduced by the UK, established two Commissions for the purpose of choosing candidates: one for the courts in England and Wales, and the other for the Supreme Court. A 15-member commission, called the Judicial Appointments Commission, is designated to oversee the nomination of judges to the courts of England and Wales. It comprises the chairman, who is always a lay member; six judicial members, including two tribunal judges; two professional members — they must be a Barrister in England and Wales, Solicitor of the Senior Courts of England and Wales, or Fellow of the Chartered Institute of Legal Executives, but both cannot hold the same qualification; five lay members; and one non-legally qualified judicial member.
Many countries have switched to an appointments commission system. South Africa has a Judicial Service Commission (JSC) that advises the President to appoint judges. The current JSC comprises the Chief Justice of South Africa, the President of the Supreme Court of Appeal, a Judge President, the Minister of Justice, two practicing advocates, two practicing attorneys, a professor of law, six persons designated by the National Assembly, four persons designated by the President, and four permanent delegates to the National Council of Provinces.
In France, the President of the Republic holds the constitutional duty to safeguard the independence of the judiciary but does not directly select judges. Judges are chosen through a process involving the High Council of the Judiciary (Conseil Supérieur de la Magistrature) or, in the case of lower courts, by the Minister of Justice who may consult or receive advice from the High Council. These models, which provide space to members of the judiciary, of legal academia, politicians, and laypersons, are progressive appointment systems. India could take lessons from them.
Reworking the N.J.A.C.
The NJAC was an elegant reform. It could have resulted in faster nominations of judges because of its democratic structure. In its present form, the collegium system, under which the Chief Justice along with four/two senior-most Supreme Court judges, recommend appointments and transfers of judges, is opaque. No one knows what the criteria are to select judges. The system offers room for favoritism, which could prevent competent and deserving judges from being appointed. Despite its supposed faults, the NJAC can be reworked by taking into account the views of the judiciary, the executive, and civil society, and the need to strike a balance between judicial independence and accountability.
The NJAC could provide a more efficient method of appointing judges, encouraging communication between the arms of the state, and addressing some of the perceived drawbacks of the collegium system. The way forward ultimately necessitates a nuanced strategy that balances the justifiable concerns of all parties involved and guarantees that the new system will increase efficiency without jeopardizing the integrity of judicial appointments. Attaining this equilibrium is vital for maintaining the rule of law and public confidence in the judiciary. In India, delayed justice is all too common and we need to think of ways of preventing this.