‘The NJAC is a cure worse than the disease’

Prashant Bhushan, advocate and political activist, has been pointing out many loopholes in the collegium system to appoint judges. However, he has been a bigger critic of the National Judicial Appointments Commission (NJAC) in the past one year. A persistent campaigner against nepotistic practices in the selection of judges, he told Frontline that there was a great need to ensure the independence of the judiciary and that the government-proposed NJAC would have compromised its autonomy. Excerpts from the interview.

You have been a vocal critic of the collegium system of judges appointing themselves, but you have welcomed the judgment which has revived the collegium. Your comments.

This is a case of the cure being worse than the disease. The NJAC had all the shortcomings of the collegium system and an additional problem. It gave a significant say to the executive in the selection of judges. I criticised the collegium system because it was non-transparent; because sitting judges could not devote adequate time to the selection of judges. They did not have a method of selection. No due criterion was followed in the selection of judges. All these shortcomings would have continued in the NJAC and would have further compromised the independence of the judiciary if the executive had a significant say in the selection of judges. I have been saying that there needs to be a full-time body that would be independent of both the judiciary and the government. There can be a secretariat that may function transparently and in a scientific manner. I welcomed the judgment because at least the executive does not have any role now. However, there are certainly serious problems with the collegium system.

You have welcomed the judgment because of the current political climate and the dangers posed to other institutions by the present government. Do you not think that legal issues like the NJAC must be decided on the basis of legal reasoning rather than the political context?

Yes, they should be decided by legal reasoning. And the legal reasoning that the judgment makes is very sound. Giving a significant say to the executive in the selection of judges in the present political climate, when we are witnessing a communal, fascist assault on the country, would have definitely compromised the independence of the judiciary. There is an attempt by the executive to control and destroy public institutions of accountability. Therefore, the ruling is particularly important as it prevents the government, at least to a certain degree, from exercising control over the judiciary.

How did the Constitution Bench respond to your proposal for a full-time independent body to select judges?

They did not get into that. That was one of our prayers in the Centre for Public Interest Litigation (CPIL) petition. I don’t know whether they will get into that on the November 3 hearing or whether they will only discuss improvements in the collegium system. Let us see. We will try and revive the issue. They said that they were only concentrating on the validity of the NJAC.

In 1993, during the hearing of the Second Judges case, the Committee on Judicial Accountability and your father Shanti Bhushan argued in favour of the collegium system. What has changed over the years?

You see, at that time, the need was to remove the government’s control over the selection of judges. It was compromising the independence of the judiciary. The more immediate problem then was to resolve that issue. In that context, it was clear that between the two options, it was always better that the judiciary selected the judges, even if the process could be a little arbitrary. All other problems remain common in both the systems. But the judiciary selecting judges at least ensures that the judiciary maintains greater independence of the judiciary. And undoubtedly, the judiciary has become more aggressive and robust after the decision to form the collegium system. It has come down heavily on corruption and other public issues. It was important to wrest control of the appointment of judges from the government. But the collegium system also has many problems which need to be addressed. In my view, the correct way to address these problems is to have a full-time independent body for appointing judges. But before we reach that stage, certain improvements can be made in the existing collegium system also.

Will you suggest reforms in the collegium system?

Yes, I will definitely suggest some measures to make the collegium system more accountable and transparent. At present, they don’t advertise the post. Because of this policy, nobody can apply or nominate people; they don’t have any critieria laid down for selecting judges. As a result, the selection becomes arbitrary and that is why nepotism flourishes.

Transparency can be ensured by advertising the posts so that people can apply or nominate others. The senior judges can lay down the criteria for selecting judges so that people have a fair idea of the selection process. Even after advertising the post, the short-listed candidates with their profiles should be made public so that people can also have a chance to raise an objection.

What will be the structure of the full-time independent body suggested by you to select judges?

There are several models. One model, which we had originally proposed, was that one or two members could be selected by a collegium of all the judges of the Supreme Court, one or two members could be selected by judges of the High Court, one member by the Union Cabinet, one member by a committee consisting of the Speaker, the Vice-President and the Leader of the Opposition, one member by institutions like the Comptroller and Auditor General, the Election Commission, and the National Human Rights Commission. This way, you can have five or seven members selected by different collegiums. After selection, they should be completely independent, unaccountable to the government. The government’s NJAC had the sitting Law Minister as one of the members, and that was very problematic.

The other model is to select five or seven members by a broad-based selection committee comprising people like Chief Justices, the Union Cabinet, etc. These selected members would then go on to select the members of an autonomous NJAC.

Both these systems should be transparent and accountable.