The Narendra Modi government has achieved a legislative breakthrough with the president giving his assent to the National Judicial Appointments Bill. The Bill had to be passed by both Houses of Parliament and a majority of the state legislatures before it could receive the presidential assent and become an Act. It is the government’s first major legislative victory. It shows that the new law has the support of a majority of MPs and MLAs. It replaces the opaque collegium system of judges choosing judges with a judicial commission headed by the Chief Justice of India, two senior most judges, the law minister and two eminent persons. Yet, the Act cannot be said to have crossed the Rubicon.
This is because its constitutional validity is likely to be challenged. In fact, the Supreme Court Advocates-on-Record (AoR) Association has already expressed its determination to challenge it. There are apprehensions that the apex court may take a dim view of the Act as it ends the judges’ own power to appoint fellow judges but that is a simplistic view of the whole matter. The need to evolve a new system of appointment arose when the system of collegium failed to choose persons of impeccable integrity as judges. There were scandals about judges chosen as chief justices of high courts suggesting a flaw in their selection. One of the main drawbacks of the system was the lack of transparency.
It goes without saying that any system which is not transparent cannot be described as fair and worthy of admiration. Given this background, the apex court should have no difficulty in rejecting any petition that seeks to have the Act declared as constitutionally invalid. The court has time and again proved itself as one of the greatest courts of law. Except for a brief period during the Emergency when it gave some questionable verdicts, it has remained an epitome of legality, justice and fair play. By rejecting the appeal against the Act as and when it is made, it can affirm that it is truly independent and does not guard its own narrow selfish interests.