(In this guest post, Ritwika Sharma examines one of the more contentious issues of the NJAC challenge – the “eminent persons” who will form part of the proposed judicial appointments commission)

As part of the new Article 124A, which details the composition of the National Judicial Appointments Commission, Article 124A(1)(d) envisages the presence of two eminent persons on the NJAC, who are to be nominated by the committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha (or the Leader of the single largest party Opposition Party, as the case may be). The proviso to this clause mandates that one of the eminent persons shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.

Article 124A, insofar as it envisages the inclusion of two eminent persons in the NJAC, was repeatedly attacked for being vague and for the lack of any guidance regarding their selection. Further, the petitioners contended that the presence of the eminent persons on the NJAC would be violative of the independence of the judiciary insofar as the executive, with the support of the eminent persons might act as a structured bloc to block an appointment.

As a response to the petitioners’ contentions, a three-pronged argument is being adopted to defend the presence of eminent persons on the NJAC:

First, the presence of eminent persons on the NJAC is intended to perform a specific objective. The argument that eminent persons would collude with the Law Minister is based on the supposition that the NJAC would function as an aggregation of three distinct blocs. Rather, the NJAC would function as a collective wherein a specific function is envisaged for each of its members. While the judiciary would be expected to assess legal acumen, the Law Minister would be best equipped to assess the character, conduct and antecedents of a candidate. Eminent persons would make significant contributions in the following manner in assessing the suitability of candidates:

1. The presence of eminent persons would bolster public confidence in the judiciary. They would ensure that perspectives of the citizenry, who are the ultimate consumers of justice, are also taken into due consideration, and that there is higher sensitivity to the issues of the public. That was the intended purpose for their inclusion in the NJAC, succinctly summed up in Mr. Parasaran’s observation in the Rajya Sabha Debate on the Constitution (121st Amendment) Bill, 2014 (which was ultimately passed as the 99th Amendment):

“People, who are litigants before the court, are represented by two eminent persons.”

A similar view was voiced in regard to the presence of “lay persons” on the various consumer fora under the Consumer Protection Act, 1986. The Supreme Court, in Indian Medical Association v. VP Shantha, (1995) 6 SCC 651 placed reliance on a study by Prof. Robin CA White, In the Administration of Justice (2nd Edn.) where he observed that “apart from their breadth of experience, the key role of lay members would be in ensuring that procedures do not become too full of mystery and ensure that litigants before them are not reduced to passive spectators in a process designed to resolve their disputes.” [as quoted in VP Shantha at para 34]

The Court further held in VP Shantha –

“In the matter of constitution of the District Forum, the State Commission and the National Commission, the Act combines with legal competence the merits of lay decision-making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers.” [para 34]

Public confidence is imperative for our judiciary, particularly in light of its powers of judicial review which are largely unparalleled in the world. Eminent persons are intended to be members of the public, presumably detached from the rigours of the legal profession. Their presence on the NJAC creates a direct stake for the public in the appointment process and ensures to them that the judges so selected would be sensitive to their interests.

2. Eminent persons add relevant inputs to the NJAC which would be essential to assess various qualities expected in a judge. The qualities required of a judge are wide-ranging, not all of them bearing an impact on his role as an adjudicator of disputes. Judges are expected to have certain qualities with regard to their conduct in the public sphere as well, whereby they should be compassionate, conscientious and insulated from all kinds of class biases. It can be nobody’s case that only judges are competent to asses such qualities in prospective candidates. Eminent persons can bring in necessary fresh perspectives in this regard. Additionally, the presence of eminent persons breeds diversity in the NJAC and by necessary implication, in the appointments made. Eminent persons facilitate a participatory appointments process and bring in plurality of viewpoints. The United Kingdom (UK) leads by example in this regard where the Supreme Court selection commissions are to consist of at least one non-legally qualified member, while the Judicial Appointment Commission (JAC) comprises 5 lay members. The presence of lay persons on selection panels finds justification in a report on Judicial Appointments, prepared by the House of Lords Selection Committee on the Constitution (2012):

“For the judiciary to be solely responsible for the appointments process would risk undermining the promotion of diversity and ultimately, public confidence in the judiciary. Furthermore, the appointments process is enhanced by the involvement of lay persons who can bring a different perspective to the assessment of candidates’ abilities. It is therefore important that selection panels include a mixture of judicial and lay representation.” [para 67]

Thus, diversity in a selection/appointment commission is expected to percolate into the appointments eventually made by such body. The importance of diversity has also found enunciation in Registrar General, High Court of Madras v. R. Gandhi and Ors. (2014) 11 SCC 547:

“Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness.” [para 16]

It is also indecorous to say that eminent persons being non-judicially or non-legally trained would be unable to assess candidates on the qualities requisite of a judge. It is reasonable to assume that these eminent persons would be ably guided by the Chief Justice and other judges on the NJAC in his functions. Yet again, the NJAC is to be viewed as a collective where each member would facilitate the other in assessing relevant qualities of the candidates placed before it.

3. Eminent persons will act as a check against arbitrary exercise of power by any of the other members on the NJAC. They would be truly independent individuals who approach the appointments process from a detached standpoint. It was repeatedly argued by the petitioners that the Law Minister with the support of any one of the two eminent persons can potentially block any appointment. On the contrary, their non-alignment with any of the other members on the NJAC would make them vigilant against any purported collusion to steer or block an appointment, acting as a much-needed check and balance.

Evidently, eminent persons would serve an important purpose on the NJAC, eventually bettering the quality of judges who would be appointed.

Secondly, the process for nomination of eminent persons comes with in-built safeguards and abundant guidance. Their appointment is to be made by a committee comprising high constitutional functionaries. In the Lok Sabha Debate on the Constitution (121st Amendment) Bill, 2014, Minister for Law and Justice, Mr. Ravi Shankar Prasad noted on the role of this selection committee:

“The Prime Minister of India, the Chief Justice of India and the Leader of the largest Opposition party cannot select the two best eminent persons! Trust their wisdom. Regulations are there, but trust their wisdom. I am sure, if a person is the Prime Minister of India, if a person is the Chief Justice of India, if the third person, the Leader of the Opposition – who knows it may be you as well on behalf of your party – ultimately decides to sit and exchange note, then let us trust their collective wisdom. This collective wisdom would reflect upon the quality of appointment being made….”

A constitutional trust attaches to the position of these functionaries and a presumption exists that they will come together to appoint persons of independence, integrity and competence. The principle of constitutional trust was applied in the context of appointments by the collegium in Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273 in the following words, and the same should apply to appointments by the NJAC as well:

“….At the end of the day “trust” in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process….” [at para 83]

Additionally, the presence of the Chief Justice of India is a sufficient safeguard to ensure that persons who will add value to the process of selecting the most appropriate candidates for judicial office would be selected as “eminent persons” on the NJAC. In fact, the argument that one of (or both) the eminent persons would collude with the Law Minister is in utter disregard of the constitutional trust attaching with the offices of these high constitutional functionaries. It proceeds on the assumption that a committee which also consists of the Chief Justice would choose a political appointee who is vulnerable to the influence of the Law Minister, thereby simultaneously casting aspersions on various branches of the government!

Lastly, and on a purely factual basis, it is argued that even previous reform proposals which have recommended a judicial appointments commission for India comprising “eminent persons” have done so without laying down any stated criteria for their selection. This is in response to the petitioners’ contention that the 99th Amendment does not lay down any guidelines/criteria for nominating eminent persons. The National Commission to Review the Working of the Constitution (Venkatachaliah Commission) proposed an appointments commission comprising the Chief Justice of India, 2 senior-most judges, the Law Minister and 1 eminent person, a model which was advocated by the petitioners themselves on several occasions. The eminent person on this commission was to be appointed by the President in consultation with the Chief Justice of India. Notably, no criteria had been prescribed for the selection of such eminent person in this model, which was modified and adopted as the Constitution (98th Amendment) Bill, 2003. The same holds true for the Judicial Appointments Commission Bill, 2013 which envisaged a commission with two eminent persons who were to be nominated by the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha. These two reform proposals, along with others, were taken into due consideration by the Parliament while passing of the 99th Amendment. None of these prescribed any criteria for the selection of eminent persons on the appointments commission.

The 99th Amendment has clearly not devised a legislative innovation insofar it speaks about the presence of eminent persons on the NJAC. In any event, the 99th Amendment and the NJAC Act provide a skeletal structure for the establishment and constitution of the NJAC. Specific details with regard to the nomination, qualification, removal, et al of the eminent persons can be gradually formulated. A challenge to the 99th Amendment on the grounds invoked by the petitioners seems misplaced. In light of the above, it is argued that the presence of two eminent persons on the NJAC is not per se violative of the independence of the judiciary.

Original author: gautambhatia1988