In all the discussions and debate on the merits of the collegium and the National Judicial Appointments Commission (NJAC), what’s been lost is the question of whether the NJAC, as envisaged under the 99th Constitutional Amendment and NJAC Act 2014, actually served the purpose it was supposed to.

The 99th Amendment and the NJAC Act, we are told in the Statement of Objects and Reasons, set out to introduce accountability and transparency in the procedure of appointment of judges. This was sought to be done by incorporating the Union law minister and such “eminent persons" selected by the prime minister, leader of opposition in the Lok Sabha and the chief justice of India.

This raises the obvious question: To whom is the NJAC supposed to be accountable and to whom does the process seem transparent? The obvious answer seems to be the government and, indirectly, Parliament. The citizens of India are twice removed from the process and in no way wiser about the selection process than the currently opaque collegium process. The NJAC incorporates all the drawbacks of the collegium system with merely cosmetic changes to the composition. No norms of suitability of judges are set out, no involvement of the wider public is envisaged and much of importance is left to be decided at a later date, non-transparently by the collegium itself.

Does that automatically mean that the Supreme Court should have struck down the 99th Constitutional Amendment and the NJAC Act as being an intrusion into the independence of the judiciary? I do not necessarily think so. The Supreme Court’s judgment in Supreme Court Advocates on Record Association vs Union of India, striking down of the 99th Constitutional Amendment and the NJAC Act as being against the basic structure of the Constitution is, in my view, based on some questionable presumptions of fact and legal prestidigitation. Even those in favour of the judgment have not attempted to defend it on purely jurisprudential and legal grounds. The defence of the judgment rests on the fact that the consequences are better than the alternative: whatever its faults, the collegium has resulted in mostly independent judges whereas the NJAC (essentially the same collegium system with two less judges and three other participants) offers up the possibility and scope of executive mischief in appointment.

Yet, focusing exclusively on the aspect of independence of judges, whether in the context of the collegium or the NJAC, has meant that the terms of the debate have narrowed and taken the focus away from the equally important issues of accountability and transparency in the functioning of the judiciary. While independence of the judiciary was no doubt an important issue over which the executive and judiciary engaged in a mahayuddh in the 1970s, 80s and 90s, the fact remains that accountability of the judiciary and transparency in its functioning pose far more penetrating questions today that, if unanswered, threaten to undermine the institution.

It is a folly to separate issues of independence, and transparency and accountability in functioning of the judiciary into separate boxes. Functional independence sans accountability and transparency is a form of tyranny. Demanding accountability and transparency without a guarantee of functional independence is tantamount to demanding servitude. Neither is the proper state of affairs for our judiciary, and all modern, democratic societies have tried to strike some balance between these aspects in the way the judiciary is structured.

In looking at the next steps forward, the issues of judicial appointment must be addressed in tandem with those of accountability and transparency. We need more vigorous public debate on how to ensure accountability of judges and transparency in the functioning of the courts, and the court must willingly step into this debate. Having vigorously defended its independence, to dispel any notions that it is “a tyranny of the unelected", the Supreme Court must accept the Right to Information Act, 2005, as its institutional dharma and not just as a bureaucratic inconvenience. This does not only mean that the judiciary must offer up information less grudgingly but should also be more proactive in releasing information and open itself to bona fide scrutiny from academics, researchers, the bar and lay citizens alike.

While judges in the lower judiciary are effectively held accountable by the high courts and on occasion, the Supreme Court, the same cannot be said of the judges of the higher judiciary itself. Apart from the ultimate tool of impeachment by Parliament on grounds of “misbehaviour", we lack effective tools to address various kinds of misbehaviour that may not necessarily warrant impeachment but nonetheless harm the judiciary’s functioning and society at large. While the instances of malfeasances—corruption in public office as seen in the cases of P.D. Dinakaran, Soumitra Sen and Nirmal Yadav merit the maximal penalty of impeachment, it would be difficult to contend that judges who have poor disposal rates, don’t sit in court on time, or tend to leave judgments undelivered for years after hearing cases should also be faced with such maximal penalties. The time has come to back up the principles of good judicial conduct with penalties and ensure that these standards are upheld in public life for judges at all levels.

The judiciary is an independent constitutional authority in its own right, just as Parliament and just as the executive. Independent, harmonious functioning in an accountable and transparent manner is required of all three wings. Judicial reforms, especially those concerning the higher judiciary, must therefore be approached holistically—questions of independence, accountability and transparency must be grappled with and solutions proposed that will balance all these principles without undermining any. Non-negotiable should be a threshold level of independence of the judiciary from the executive and Parliament, accountability of judges in their functioning to the public at large, and transparency in the functioning of the judiciary that enables the public at large to appreciate why the institution works the way it does.

Alok Prasanna Kumar is senior resident fellow at Vidhi Centre for Legal Policy and heads their judicial reform research wing.

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