National Judicial Appointments Commission

The National Judicial Appointments Commission (NJAC) was established by the Union government of India by amending the constitution of India through the 99^th Constitutional Amendment Act, 2014. The amendment act was passed by both the houses of Parliament with two-thirds of majority in August, 2014. Along with the amendment act, the NJAC Bill 2014 was also passed by the Parliament. The bills were approved by the 20 state legislatures and President of India gave his assent to the bills in December, 2014. The two acts came into force from 13^th April 2015.

The National Judicial Appointments Commission (NJAC) established under the NJAC Bill 2014, replace the over two-decade-old collegium system followed for the appointments of the judges of Supreme Court and the 24 high courts. The headquarters of the commission was to be in New Delhi.

Composition of NJAC

The 99th amendment of the Constitution inserted a new Article 124A, which provides for composition of the NJAC. According to this, NJAC would consist of:

• Chief Justice of India (Chairperson)
• Two senior most Supreme Court Judges next to the Chief Justice of India

• The Union Minister of Law and Justice
• Two eminent persons (to be nominated by a committee consisting of the Chief Justice of  India, Prime Minster of India and the Leader  of Opposition in the Lok Sabhaor the leader of the single largest opposition party in the House where there is no such Leader of Opposition)

Of the two eminent persons, one person would be from the SC/ST/OBC/minority communities or be a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Functions of the NJAC

According to a new article 124B, the functions of the NJAC will be as follows:

• Recommending persons for appointment as Chief Justice of India, judges of Supreme Court of India, Chief Justices of high courts and other judges of the high courts.
• Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court
• Ensuring that the recommended persons have ability and integrity.

Procedure for Selection of the Chief Justice of Supreme Court

The act mandates the NJAC to recommend the name of senior most judge of the Supreme Court for appointment as Chief Justice of India. Provided, he must be considered fit to hold the office.

Procedure for Selection of the other judges of Supreme Court

NJAC shall recommend names of persons on the basis of their ability, merit and other criterion specified in the regulations.

Procedure for Selection Chief Justices of HCs:

The NJAC is to 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 HC Judges

In case of appointment of a regular Judge of a High Court, the commission will also seek views in written from:

• Governor of the state
• Chief Minister of the state
• Chief Justice of High Court
• Veto Power of NJAC members

The members of NJAC have veto power in selection of other judges of SC and HC. The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Power of President to require reconsideration

The act empowers the president to reconsider the recommendations made by it. If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.

Challenge to the NJAC act

The NJAC act was challenged in Supreme Court by Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law is unconstitutional and it is aimed at hurting the independence of judiciary. After accepting the petition, on October 16, the five-member constitutional bench of Supreme Court headed by the Justice J.S. Kheharwith 4:1 majority has declared the National Judicial Appointments Commission and the 99^th Constitutional Amendment act as ‘unconstitutional and void’.

Judgement of the Supreme Court bench

• The Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
• The system of appointment and transfers of Judges higher judiciary, as existing prior to 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.
• Inclusion of Law Minister in the commission impinged both on the independence of the judiciary and the doctrine of separation of powers between the judiciary and the executive.
• The bench also rejected for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases.
• To consider introduction of appropriate measures, if any, for an improved working of the “collegium system”.

Analysis: Collegium vs Commission

The Supreme Court bench held that the clauses in the amendments are inadequate to preserve the primacy of the judiciary and the inclusion of the Law Minister in the NJAC has impinged on both the independence of judiciary and the doctrine of separation of powers, which are basic features of the constitution. It also asserted that the better 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 appointment of the higher judiciary. In India, the government is the major litigant in crucial cases. In such a situation, inclusion of law minister representing the executive for appointment and transfer of judges will results in conflict of interest. The executive may seek reciprocation from judiciary for appointing their favourites. The public confidence in the judiciary will also be lost if the major litigant has a role in appointment and transfer of judges.

Under 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 major role to political class.  The veto power of eminent persons will reduce the importance of Chief Justice of India and Executive in the appointing process. The eminent persons may exercise the veto without giving any reasons and it 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 collegium system.

Article 124C empowered the parliament to change the structure of NJAC through the ordinary law-making process. This is 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 the alternate to the collegium system. The NJAC had been set up to provide a balance in selection of judges with representations from judiciary, executive and outside. As pointed out by government, judges cannot be the sole judges of their own case. They should be accountable. The constitution provides for stringent conditions for amending the constitution, demands the support of the both the houses of the parliament and of majority of state legislators. The NJAC bill passed through the constitutional amendment process and the bench’s rejection to it amounts to negation the people’s will.

Conclusion

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.