The National Judicial Appointments Commission Act, 2014 (“NJAC Act”) finally saw the light of the day on April 13, 2015, the day it came into force. The NJAC Act along with the Constitution (Ninety-ninth Amendment) Act, 2014 have been enacted to scrap the existing collegium system in the judicial appointments by creating a National Judicial Appointments Commission (“Commission”) for this purpose . However, the very structure of the NJAC is being questioned for being inclusive of executive functionaries and thereby violating the principle of ‘separation of powers’, as enshrined under the Constitution of India. As of now, the fate of the NJAC Act hangs in uncertainty as the Supreme Court of India has been moved to examine its constitutionality.
Interestingly, the Constitution of India does not specifically provide for the collegium system. The Article 124 which deals with the constitution of the Supreme Court states that “every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose…”, and further that “…in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted…”. The article 217 contains a similar provision regarding appointment of High Court judges.
Interestingly, the so-called collegiums system, which has been in place since 1993, was actually evolved over the years by the Higher Judiciary itself based upon three Supreme Court judgments, commonly known as ‘the three judges cases’ . In terms of these judgments, the Court crystallized the collegium system, by according primacy to the opinion of the Chief Justice of India over that of the executive represented by the President, in all matters relating to judicial appointments. It was further clarified by the Court that the opinion of the Chief Justice has to be formed after discussing with the four senior most judges of the Court.
Notably, the term ‘consultation’ with the judiciary as used under the Constitution was interpreted by the Supreme court to mean ‘concurrence’. Similarly, while the Constitution leaves it to the discretion of the President to decide how many judges to consult for this purpose, the Court, on the other hand, sought to fix the number of the judges to be consulted by the President.
As per the NJAC Act, all matters concerning transfer and appointment of judges shall be made by the President upon recommendations of the Commission. The Commission would be chaired by the Chief Justice of India and would include two senior most Judges of the Supreme Court, the Union Minister of Law and Justice, two eminent persons to be nominated by a committee of the Prime Minister of India, the Chief Justice of India, and the Leader of the Opposition in the House of the People.
The primary contention against the NJAC Act is that it alters the basic structure of the Constitution and its founding principles of independence of judiciary and separation of powers. A huge chunk of the litigation in this country involves the Government as a party, thus letting the Government choose the judges of the higher judiciary would lead to a potential conflict of interest situation.
Another contentious aspect of the NJAC Act is that any two members may veto any recommendation made by the Commission, thus, leading to a potential situation whereby the judicial members may oppose the person recommended by the executive and vice versa. As expected, the constitutional validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 and the NJAC Act has been challenged in the Supreme Court of India on the ground they have altered the basic structure of the Constitution of India and thus should be set aside . Thus, the matter finally rests with the higher judiciary to decide the fate of the Commission.
In the backdrop of the above discussion, it is clear that if permitting the executive to appoint or transfer judges with no accountability whatsoever, would defeat the entire purpose of the justice delivery mechanism; having a self appointed judiciary may not be the alternative. Thus, a middle path needs to be devised to make the appointment process more transparent, fair and just. The question is whether NJAC, in the present form provides a workable solution.
The presence of ‘two eminent persons’ on the Commission without any minimum qualification, is shrouded in mystery and thus should be done away with. The provision empowering any two members of the Commission to veto any nomination made by the Commission must also be reconsidered. Alternatively, the minimum quorum required to approve a nomination can be provided. However, to the extent the NJAC Act paves the way for setting out clear criterion and regulations with respect to nomination of judges based on merit, ability and other factors, the NJAC Act is welcome.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
