PERSPECTIVES june 27, 2015 vol L nos 26 & 27 EPW Economic & Political Weekly 42 C Raj Kumar (VC@jgu.edu.in) is Vice Chancellor, O P Jindal Global University, Sonepat, Haryana; Khagesh Gautam (kgautam@jgu.edu.in) is with the Centre for Public Law and Jurisprudence, Jindal Global Law School, O P Jindal Global University, Sonepat, Haryana. Questions of Constitutionality The National Judicial Appointments Commission C Raj Kumar, Khagesh Gautam The National Judicial Appointments Commission system for appointing judges is unconstitutional for four reasons. There is potential for its misuse as appointments to the higher judiciary will be controlled by the executive branch of the government. It suffers from the vice of arbitrariness as there is no way to determine who an “eminent person” is. The veto powers given to any two members also make it susceptible to misuse. Finally, there are concerns about maintaining the independence of the judiciary because the high courts and the Supreme Court examine the validity of actions taken by the executive branch as well as the legislature. T he Supreme Court of India is aware of the challenge to the con- stitutional validity of the Consti- tution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission ( NJAC) Act, 2014. 1 The new framework provides for an NJAC headed by the chief justice of India ( CJI ), two other judges of the Supreme Court, the union law minister and two “eminent persons” to be appointed by a collegium consisting of the Prime Minister, the CJI, and the leader of the opposition in the Lok Sabha. The article focuses on exam- ining why the NJAC and the 99th Amend- ment Act are unconstitutional. It does not examine the question of whether the collegium system of appointing judges was desirable or better than the legal and constitutional framework of the NJAC. The NJAC may be a desirable step towards greater transparency in the ap- pointment of the judges, but the legal and constitutional framework envisaged in both the acts violates constitutional provisions. Arbitrariness in Appointment One of the most important principles of our constitutional law is non-arbitrari- ness. 2 A five-judge bench of the Supreme Court has observed that arbitrariness is more subversive of the fundamental right of equality compared to statutory discrimination. 3 The existing procedure for the appointment of two “eminent persons” to the NJAC does not provide for any process or criteria to evaluate eminence. It is fully left to the commit- tee comprising the Prime Minister, the leader of the opposition (or the leader of the largest opposition party), and the CJI to determine who the eminent persons are. Article 14 of the Constitution provides for equality and non-arbitrariness in decision-making. 4 If the law requires the executive authorities to act in a certain way, a deviation from this in the absence of any discernible principle is itself liable to be labelled arbitrary. 5 A process that fails to provide any criteria for the evalu- ation of eminence violates the funda- mental right of protection against arbi- trary action. Further, one of the criti- cisms of the collegium system is that it promotes an arbitrary process of ap- pointing judges with no criteria for the selection of individual judges. 6 If the effort is to formulate a legal and consti- tutional framework that will guide and provide a better perspective for appoint- ing judges, we would expect the process, including the selection of members of the appointments committee, to be based on transparent and determinable criteria. 7 Unfortunately, in this case, the words “eminent persons” not only give absolute flexibility for appointing any- body to the committee, but also give the executive a majority in the three- member committee to appoint them. That there are no checks and balances on this selection makes the process not only arbitrary, but also unfair. It is recognised that the possibility of abuse of power should not be a criterion for de- termining whether power should be given to constitutional functionaries or not. 8 As recently as 2014, a unanimous five-judge bench of the Supreme Court restated the long-recognised principle that constitutional functionaries are expected to exercise their powers with a certain sense of responsibility. 9 By virtue of the powers that are given to them in legislation and the Constitution, they are empowered to take decisions and act in accordance with the law. But, in this case, the legal and constitutional frame- work should recognise that those powers need to be exercised in a transparent and responsible manner. Speaking in the context of appointments to “sensitive posts,” a three-judge bench of the Supreme Court stressed the need for ensuring transparency in such cases. 10 The same observations apply to the current issue.