The Supreme Court has struck down the proposed National Judicial Appointments Commission (NJAC) as unconstitutional. It is a reaffirmation of the independence of the judiciary. The proposed commission was to do away with the separation of powers between the judiciary and the executive. The autonomy of the judiciary, according to the Supreme Court, is fundamental to the guiding principles of the Constitution. Of course, the government can still file a curative petition against the Supreme Court’s decision. Nevertheless, the verdict of the apex court is a landmark event. The NJAC was conceived to counteract the inefficiency of the Supreme Court and the instances of corruption which have recently come to light. However, better functioning of the judiciary cannot be achieved by crippling its independence. Judges are now appointed by the President in consultation with the Chief Justice of India. The Chief Justice decides as a matter of fact. The executive proposed that the Commission should bring in persons of eminence into the voting exercise, with veto powers. But these eminent persons may not have any experience in the field. They can only be part of ‘decision making, not decision taking’. On the other hand, it has to be admitted that judicial activism can be undesirable and may not actually protect the citizen from arbitrary exercise of power.
The judiciary should not merely assert autonomy. It has to live up to it. The NJAC was supposed to settle some long pending issues. Now all corruption and scope for compromise have to be eliminated. The incorruptibility of judges is no longer beyond question. Law’s delay is a permanent malaise. The case of making the appointment of judges the prerogative of the judiciary may be unassailable. But there should be transparency removing doubt and speculation. It has to be acknowledged that in the last analysis the judge should sum up.