National Judicial Appointments Commission (NJAC)

National Judicial Appointments Commission (NJAC) 

On 16 Oct 2015 the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, which came into force from 13 Apr 2015, as unconstitutional and upheld the ‘Collegium System’ in vogue for the past two decades. This blog discusses the creation of the ‘ Collegium System’, criticisms of the same, criticisms of the NJAC Act and reversion of status quo.

Background

The executive has made consistent attempts to undermine judicial independence, notably during the Emergency era. The Supreme Court’s famous ruling in Keshavananda Bharati case led to the supersession of three senior most judges of the Supreme Court by the Indira Gandhi government. The government appointed a Chief Justice who had passed judgments in favour of the government. The judges were often compliant to the wishes of the executive. Post 1980, with the return of the Indira Gandhi government, the ministry of legal affairs yet again undermined judicial independence by arbitrary transfers.
 

 ‘Collegium System’

The ‘Collegium System’ came into existence in 1993 in response to the growing executive role in undermining the judicial independence. The Supreme Court arrogated the constitutional provisions for appointment to itself. This was through the creation of the ‘Collegium System’, which consisted of the Chief Justice in conference with seniors of the Supreme Court to appoint future judges. The Supreme Court became the sole and final arbitrator of not only law but also judicial appointments to the constitutional courts.  The criticisms of the system are:

  • Lack of transparency.
  • Lack of accountability.
  • There have been charges of nepotism.
  • Chief Justices have been appointed who had meaninglessly short tenures.
  • India is the only country following the ‘Collegium System’.

 

National Judicial Appointments Commission (NJAC) 

NJAC was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary. The Commission was established vide the Ninety-Ninth Amendment Act, 2014 to the constitution passed by the parliament to replace the ’Collegium System’.
NJAC would have consisted of the following six persons:

  • Chief Justice(Chairperson).
  • Two other senior judges of the Supreme Court next to the Chief Justice.
  • The Union Minister of Law.
  • Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

  • Chief Justice of India,
  • Prime Minister of India, and
  • Leader of Opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha, provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons would be nominated for a period of three years and would not be eligible for re-nomination.

 

 NJAC Declared Unconstitutional- Road Ahead

The prime reason for declaring NJAC as unconstitutional is apparently the historic distrust of the executive in subverting the independence of the judiciary by manipulating the system of appointment and transfer of judges. The stated ground for unconstitutionality is that the NJAC violates the basic structure of the constitution. Comments on the subject have come from many eminent persons, including the Finance Minister, both hailing, as well as criticising the judgement. The ‘Collegium System’ ,which continues for now, will have to be replaced by a better system at the earliest. My personal view is that despite the undeniable flaws of the existing system it is better than the executive subverting the independence of the judiciary, the possibility of which existed in the NJAC Act.
#NJAC

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