One need not elaborate the problems with the present system of elevation of Judges for the higher judiciary, by the collegium of serving judges.
It is opaque, self-serving, fraught with nepotism, lacks professionalism and unscientific.
How nice it would be if we can have a better system!
Does NJAC fits the bill?! Sadly, it is not.
Why?
NJAC (National Judicial Appointments Commission), is a six member body, and will have three judges, the law minister and 2 independent members.
The catch is here. These two members are appointed by another committee having two politicians and one Judge. Thus these 2 members could be anybody agreeable to politicians. We all know how much credibility the political class in India holds, in-spite of having some of the best political leaders among us.
Now, we possibly have two members agreeable to the politicians, plus the Law minister, makes it exactly 50% strength of 'political sympathizers' in the NJAC. All they need is one more judge who has a tilt towards govt, if not a clear bias. Then the NJAC can easily select judges who are 'soft' to the government.
Thus, over a period of time, we will have more judges in the higher judiciary who have been elevated 'thanks' to the political masters, and in all probability soft towards the govt. So, there is all possibility, that NJAC will degenerate into another 'collegium' of the Parliament!
What will happen then? The independence of the Judiciary will be reduced to paper. The consequences will be irreversible, dangerous, and possibly destroy the spirit of the Constitution.
We will lose the last bastion that can stand a totalitarian govt.
And consider these:
1. The democracy, though vibrant in India, has not matured enough. When United Kingdom can run its democracy much smoothly without a written constitution, we struggle to run ours even with a detailed written constitution! Horse trading, Parliamentary impasse, Ordinance getting defeated in the floor are common to us. Thus, we are yet to mature.
Can an immature parliamentary democracy start tinkering with the judiciary? Is it not commonsense that we should put our own house in order first, before we poke our nose into neighbor's house?
2. Second is the process of election itself. In-spite of the marked improvement in the manner elections are conducted in India, and their general acceptability; the elections are far from being perfect. We all know how the voters are influenced. We all know about the inaccurate -rolls. Above all we have the first-past-the-post system, which throws up representatives who could have got more votes against that for! Thus, the parliament that we have has its serious limitations before it could arch forward to catch the absolute power, that it can get in an ideal democracy.
3. Third is the question of 'who will rein the govt, if it does a blunder?' What options we have? Only an independent judiciary can do that! If we take out that option, the next choice will be a coup d' etat. Do we want that?
Thus, though collegium has its own problems, let the Judicial independence be not disturbed. Let's keep the Parliament away from interfering in the higher judicial appointments. Let's see if the collegium system can be improved without interference from outside. That would be a useful discussion in the right direction.
My two cents!
