#NJACVerdict: Supreme Court has avoided a legal disaster

The possible impact of politicising the selection of the judiciary by ‘two eminent persons’ could not be ruled out.

 |  2-minute read |   17-10-2015
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The Supreme Court on October 16 rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment that sought to give politicians a final say in the appointment of judges to the highest courts. The court by a 4-1 verdict held that the NJAC Act and the 99th Constitutional Amendment were "unconstitutional and void" and reinstated the collegium system. But the judges felt that the 21-year-old collegium needed to improve.

Presiding Judge Justice JS Khehar asked the government to "Help us improve and better the system...The variance of opinions when different minds and interests meet or collide is wonderful," while scheduling further debate for November 3, for suggestions to improve the functioning of the collegium. The entire bulk of the series of judgements and order runs to about 1,000 pages.

Justice J Chelameswar disagreed with the majority, but did not go into the merits of the NJAC, as it had already been struck down by the majority. He found nothing "inherently illegal" with two members of the NJAC having a veto power to stall a recommendation. However, many lawyers including the doyen of the legal profession Fali Nariman, disagreed. On behalf of the executive, the law minister and "two eminent persons" were members of the recommending body for judges of the highest courts.

But what makes two persons "eminent persons?" This is a highly subjective decision, with the quite possible impact of politicising the selection of the judiciary by "two eminent persons" who may belong or be loyal to ruling political parties or dominant interest groups.

To civil society and many jurists, lawyers this judgement appears historic. It has prevented the politicisation of the judiciary while leaving the doors open to discuss improvements in the collegium system.

But it is indeed time for the secular, democratic parties and their lawyers to introspect. A legal disaster has been avoided.


Kamal Mitra Chenoy Kamal Mitra Chenoy @kamaichenoy

The writer is an academic and activist.

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