[Polity] National Judicial Appointments Commission

The National Judicial Appointments Commission Bill, 2014 (NJAC Bill) that seeks to replace the present collegium system of  choosing judges, was passed by the Lok Sabha on August 13, 2014 and
by the Rajya Sabha on August 14, 2014. The NJAC Bill, which has been already passed for Presidents assent, was introduced in conjunction with the Constitutional  Bill, 2014, which gives constitutional status to the proposed Commission (NJAC or Commission). The Commission is the proposed body responsible for the appointment and transfer of judges of the higher judiciary {Supreme Court (SC) and High Courts (HC)} in India. The Constitutional Amendment Bill, if ratified by half the state legislatures in India and assented by the President of India, will become an Act. A new Article 124A (which provides for the composition of the Commission) will be appended in the Constitution, if the amendment is ratified. Constitution of the National Judicial Appointments Commission A new article, Article 124A, (which provides for the composition of the NJAC) will be inserted into the Constitution.

Composition :
As per the amended provisions of the constitution, the Commission will consist of the following persons:
  • The Chief Justice of India (CJI)- the Chairperson of the Commission
  • Two other senior judges of the Supreme Court next to the Chief Justice of India - ex officio
  • The Union Minister of Law and Justice
  • Two eminent persons to be nominated by the Committee consisting of the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha or the Leader of the single largest Opposition Party in the Lok Sabha. At least one of them shall be nominated from the SC, ST, OBC, Minorities or Women.

Collegium System :
The Supreme Court of India's collegium system, which appoints judges to the nation's constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993.
Functions of the NJAC:
  •  The NJAC will recommend to the President the appointment and transfer of the judges of the higher judiciary (Supreme Court and High Courts).
  • The NJAC will make recommendation to the President for appointment of Chief Justice of India (CJI) and the Chief Justices of High Courts.


Procedures to be followed by the Commission :

Chief Justice of India
The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided if he/she is considered fit to hold the office.

Supreme Court Judges
The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.
The Commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Procedure for Selection of High Courts Judges :

Chief Justices of High Courts
The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other High Court Judges
The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges and then forward such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Power of NJAC to make Regulations:
NJAC retains the power to make Regulations regarding:
  • The criteria of suitability with respect to the appointment of a judge of the SC or HC.
  • Other procedures and conditions for the selection and appointment of a judge of the SC or HC.
  • Other judges and eminent advocates who may be consulted by the Chief Justice.
  • The manner of eliciting views of the Governor and the CM of the concerned State.
  •  The procedure for transfer of the Chief Justices and other judges from one HC to any other HC.


Analysis of the National Judicial Appointments Commission (NJAC) :
  •  With the Judicial Appointments Commission (NJAC), it is expected that transparency in judicial appointments will be seen in the highest courts. Also, it would end the highest judiciary’s two-decade-old grip over the appointments of judges through the collegium system.
  •  Under the present Collegium system, the Chief Justice of India consult the four senior most judges of the Supreme Court for appointments to the Supreme Court and two senior-most judges for appointments to high courts.
  • Hence, the National Judicial appointments commission gives the executive an equal role in the appointment of judges to the highest judiciary.


Concerns and Issues regarding National Judicial Appointments Commission (NJAC) :
  •  The NJAC takes away the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India.
  • Although the six-member Judicial Commission has the CJI as chairperson and two senior most Supreme Court judges as members, there was no “primacy” for their opinion which can be vetoed by any two non-judicial members on the panel.
  •  There are various contentions regarding the National Judicial Appointments Commission. The following points summarize the issues and concerns related to NJAC.
  • On the contrary, under the present Collegium system, the Chief Justice of India would be consulting the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments, hence, having primacy of their collective opinion. 
  • Through the NJAC Bill the parliament had “altered the basic structure of the Constitution” and encroached into judicial independence. Given here that, independence of judiciary includes elimination of the political influence even at the stage of appointment of a judge which is alleged to be violated.


Drawbacks of NJAC: 
  1. While appointing the eminent person, there has been no mention about whether such person is to be eminent in the field of law or otherwise.
  2. Phrase “eminent” is too wide in scope and capable of being misused.
  3. In the matter of appointing the next CJI – with the incumbent CJI sitting out the vote, the judicial members of the Commission will become a minority, and the determination of the next CJI practically left to the Executive.
  4. Government introduced two bills National Judicial Appointment Commission Bill and the 121st Constitutional Amendment Bill. If provisions of the NJAC Bill accommodated within the Amendment Bill then it would have resulted in a pre-decided eligibility criteria for appointment of judges, set and carved in stone into the Constitution, thus unchangeable by a simple Parliamentary majority.
  5. Increased role of executives might theraten independence of judiciary as a role of judiciary has become prominent with its ruling on coal scams 2G-3G scam etc.
  6. Recommendation of the Chief Justice of India would be reduced to mere suggestion.


Suggestions :
It should implement recommendation of Venkatachaliah Committee, endorsed by the Vajpayee government, which suggested a panel of three judges, the Union Minister and only one ‘eminent person’, thus reducing the scope for executive interference. Also provisions of the NJAC Bill accommodated within the 121 Amendment Bill and unbiased definition of eminent must be put in place.

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