The pangs of creating a new mechanism to make appointments to the higher judiciary are already being felt. The National Judicial Appointments Commission Act has been notified, >but the NJAC is yet to be fully constituted . It requires only the appointment of two eminent persons to complete the six-member body; the other four members are the Chief Justice of India, two senior-most judges of the Supreme Court and the Union Law Minister. But there is uncertainty over the appointment of new judges in the High Courts and the Supreme Court as a Constitution Bench is hearing a challenge to the law. The >Union government notified the NJAC Act this week and effectively ended the primacy enjoyed by the judiciary for the last two decades in the matter of appointments to the Supreme Court and High Courts. However, under some prodding from the Constitution Bench, it has agreed that the NJAC, which is expected to be constituted before May 11, would not appoint new judges until the >validity of the law is decided. There is understandable anxiety on the part of the court over who would take care of immediate issues. For instance, the terms of office of several additional judges in the High Courts could end before the Constitution Bench decided on the validity of the Act. Justice J.S. Khehar who heads the Bench has noted that it would be embarrassing if fresh appointments were made now and eventually the NJAC was declared invalid.
The via media suggested is that the government could move quickly to appoint the two eminent persons and constitute the body so that it could extend the terms of additional judges or confirm them as permanent ones, thereby avoiding a situation in which their tenure comes to an abrupt end merely for want of a mechanism to decide on their continuance. And the NJAC would make no fresh appointments during the pendency of the proceedings. While this may be an interim arrangement, there is little doubt that the situation should not be allowed to prolong. For the time being it is imperative that the judiciary and the executive cooperate with each other and avoid undue delays in filling up vacancies while the questions of law are being settled. As such, a less substantive issue had cropped up. As two senior-most judges besides the Chief Justice will be members of the NJAC, a question was raised whether judges who are likely to be part of the Commission, both in the present and in the future, should recuse from the hearing. This has since been tackled. Such preliminary issues should not deflect attention from the real question whether the new mechanism impinges on the independence of the judiciary, or delay an authoritative pronouncement on it.
