The NJAC proposes to make the appointment of the High Court and Supreme Court judges and chief justices more transparent. They will be selected by the commission, whose members will be drawn from the judiciary, legislature, and civil society. Until the NJAC came along, Articles 124 and 217 of the Constitution dealt with the appointment of judges of the higher judiciary. These articles specifically read out that judges would be appointed by the President of India after “consultation” with the Chief Justice of India (CJI) along with the other judges. The word “consultation” is significant because in 1993, in the so-called Second Judges case, the SC decided that the CJI must agree to all judicial appointments—and the concept was known as “concurrence”. This led to the creation of the collegium system, wherein the three seniors most Supreme Court judges decided on who would be a High Court or Supreme Court judge.
The National Judicial Appointments Commission (NJAC) was a proposed body responsible for the appointments and transfers of the judges in the country. According to the NJAC, the commission would replace the old collegium system for the appointments of judges. In the proposed NJAC Act, the commission would have six members — Chief Justice of India (Chairperson), two other senior judges of the Supreme Court next to the Chief Justice of India, Union Law Minister, and two eminent persons chosen by a committee formed of CJI, Prime Minister and the Leader of Opposition. As per the NJAC, the commission was empowered to recommend persons for the appointment of CJI, judges of the Supreme Court, Chief Justices of High Courts, and other judges of High Courts. It also has the power to recommend the transfers of the CJI and other judges of High Courts from one High Court to any other High Court. And last but not least, the commission was responsible for ensuring that the persons recommended are of the ability, merit, and other criteria mentioned in the regulations related to the Act. The NJAC Bill 2014 that established the NJAC was introduced and passed by both houses of Parliament with the Constitutional (99th Amendment) Bill 2014 in August last year. The President gave his assent to the bill on 31 December 2014 and the Act was notified by the government on 13 April 2015. However, by then the Act had been challenged in various public interest litigations in the Supreme Court.
The challenge to the NJAC Act
The NJAC Act was challenged in the Supreme Court by Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law is unconstitutional and is aimed at hurting the independence of the judiciary. After accepting the petition, on October 16, the five-member constitutional bench of the Supreme Court headed by Justice J.S. Khehar with a 4:1 majority has declared the National Judicial Appointments Commission and the 99th Constitutional Amendment Act as ‘unconstitutional and void’.
Judgment of the Supreme Court bench
The Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, are declared unconstitutional and void. The system of appointment and transfers of Judges’ higher judiciary, as existing before the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium system”), is declared to be operative. The clauses provided in the amendment are inadequate to preserve the primacy of the judiciary, a basic feature of the constitution.
The addition of the law minister in the commission impinged both the independence of the judiciary as well as the doctrine of separation of powers between the judiciary and the executive. The bench was also rejected for reference to a larger Bench, and reconsideration of the Second and Third Judges cases. To consider the introduction of appropriate measures, if any, for an improved working of the “collegium system”.
Collegium vs Commission
The Supreme Court bench held that the clauses in the amendments are inadequate to preserve the primacy of the judiciary and also the inclusion of the law minister in the NJAC has impinged on both the independence of the judiciary and the doctrine of separation of powers, which are basic features of the constitution. It also asserted that the betterment of the functioning of the judiciary must not be secured at the expense of its independence.
By striking down the Constitutional amendment the Supreme Court has sought to ensure that the executive does not have a say in the appointment of the higher judiciary. In India, the government is the major litigant in crucial cases. In such a situation, the inclusion of a law minister representing the executive for appointment and transfer of judges will result in a conflict of interest. The executive may seek reciprocation from the judiciary for appointing their favourites. The public confidence in the judiciary will also be lost if the major litigant has a role in the appointment and transfer of judges.
Under the NJAC Act, the executive sought to bring two eminent persons into the voting process, with veto powers. The bench said that this will promote the “spoils system”. As there is no particular criterion to decide who is an eminent person, the eminent persons may be unspecialized people without judicial experience. The selection panel with CJI, Prime Minister, and Leader of Opposition as members has given a major role to the political class. The veto power of eminent persons will reduce the importance of the Chief Justice of India and the Executive in the appointing process. The eminent persons may exercise the veto without giving any reasons and this power will disturb the appointment process.
Under NJAC, the president cannot even ask the views of anybody (including other judges and civil society) which was permissible in the collegium system.
Article 124C empowered the parliament to change the structure of NJAC through the ordinary law-making process. This is a violation of the theory of separation of powers and gave the legislative pillar unprecedented powers.
As pointed out earlier, the collegium system is fraught with its problems. The NJAC is trying to provide an alternative to the collegium system. The NJAC had been set up with the view to provide a balance in the selection of judges with representations from the judiciary, executive, and outside. As pointed out by the government, judges cannot be the sole judges of their cases. They should be accountable. The constitution provides some stringent conditions for amending the constitution and demands the support of both the houses of the parliament and the majority of state legislators.
The NJAC bill passed through the constitutional amendment process and the bench’s rejection of it amounts to negation of the people’s will.
Though the Supreme Court bench has quashed the NJAC Act, it has acknowledged the inherent flaws in the collegium system of appointment and asked the citizens of India for suggestions to improve the system. However, the court should address the long-pending issues that had lent credibility to the demand for an NJAC. The court should develop zero tolerance for corruption and compromise.
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