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NJAC v. Collegium: A Critical analysis over appointments in higher judiciary

Tanay Akash, B.A. LL.B., Central University of South Bihar

Introduction

“Power corrupts and absolute power corrupts absolutely”, this quote by Sir Arnold in the true sense describes the present condition of Indian Judiciary. Lack of transparency and opaque appointment procedure lead to a direct conflict between executive and judiciary with coming of the National Judicial Appointment Commission Bill 2014, with an all-new procedure for the appointment in the High Courts as well as in the Supreme Court, with the formation of national judicial appointment commission, the selection procedure went towards executive too as law minister was also a part of it. But, after the cancellation of this NJAC bill 2014 by Apex court on the basis of infringement in the independence of judiciary violating the basic structure lead to a direct controversy between judiciary as well as executive.

Every Judge of Supreme court or High court shall be appointed by the President of India by warrant under his hand. Article 124(2) of the Indian Constitution provides the method to appoint the judges of the Apex court including Chief Justice of India (CJI) and likewise in the high courts. Indian judiciary being an independent body, followed the method for the appointment of the judges called as “collegium system”. A system where a group of judges select judges for high courts and Supreme Court. A body of senior apex court judges, headed by chief justice of India, had at the time selected persons and recommended their names for appointment as Judges. However, it has no place in the Indian constitution. The central government has criticized it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court. The Supreme Court Bar Association had blamed it for creating a “give and take” culture, creating a rift between the haves and have-nots. It was said that while politicians and actors get instant relief from courts, the common man struggles for years for justice. For this government proposed National Judicial Appointment Bill in 2014 by amending the constitution(99th amendment)  for the purpose of appointment of judges of Supreme court and High courts but this bill was rejected by the Apex court and consequentially conflicts, as well as controversies, arose.

NJAC: A REVIEW

The National Judicial Appointments Commission Bill, 2014 was introduced in the Loksabha on August 11, 2014, by the Minister of Law and Justice, Mr Ravi Shankar Prasad to establish the “National Judicial Appointment Commission” (NJAC). It got established by amending the constitution (99th amendment 2014) to provide a commission for the appointment of the judges in higher Judiciary. The Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of the high court (HC).

The proposed commission consist, six people

  • The Chief Justice of India,
  • The Two Senior Judges of the Supreme Court,
  • The Law Minister,
  • Two Eminent Members(nominated for a term of 3 years by Prime minister, Chief Justice and Leader Of opposition)

 

The Actual Conflict of transparency or power

It was explained by the government side that there is a need for National Judicial Appointment Bill due to following drawbacks of existing collegium system-

  1. a) Lack of a proper mechanism to check professional background of judges- The collegium system lacked a proper mechanism to collect details of the judges-to-be. The famous cases of P.D Dinakaran, J. Saumitra Sen and J. Nirmal Yadav clearly highlighted it.
  2. b) Absence of a transparent process for an appointment- The collegium system which was the forum of the CJI and the four senior most judges, appointed the judges which were unknown to the world at large. There was no transparency in selection or rejection of the candidature.
  3. c) The confusion relating to “meritorious” selections- The term merit was nowhere defined in any statute but was made the most important criteria for selection. Thus leaving the appointment of judges on the basis of a tricky concept of merit to a secret forum may result in negative consequences.
  4. d) Packing of courts with judges of a similar school of thoughts – It is the natural tendency of the people to favour likeminded people and thus, leaving the entire selection process to five judges resulted in a packing of the courts with judges of similar ideologies. If a court is filled with judges having a similar thinking process, it may find it difficult to decide matters relating to diverse issues. Also, the number and the quality of dissenting opinions, which are essential for analysing the pros and cons of the decision, decrease.

But the apex court rejected this plea on following grounds-

  1. Likely hood of conflict- It enhances the chances of a dispute between the commission and the central government on the matters of residuary powers.
  2. The Legislative Evasion- The structure of the commission is made in such a way that it hampers the independence of judiciary as it provides direct doors to execute in the judiciary matters’
  3. The missing Element of “merit”- This bill also does not provides satisfactory criteria of merit over which collegium was been criticized.
  4. Excessive Legislative Interference- This act also enables the legislature to amend all the provision regarding the appointment of judges thus making an excessive interference in judicial matters.

As stated National Judicial Appointments Commission Act was against the basic feature of our constitution, as it dilutes the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments. Also, it provides the involvement of government in the council compromising the independence of the judiciary. Thus, the actual conflict is seen between the judiciary and executive.

 

Conclusion

In NJAC, there were 3 members from the judiciary and three from outside. Also, the government and the opposition could nominate members to the council which made the Council diverse, also in NJAC, members have veto power. If two members veto a nomination or decision, the matter is dropped. It was much more transparent than the collegium form of system used for the selection procedure. But its denial by the Apex Court on the ground of curtaining independence of the judiciary and the interference by other bodies is also very much valid. But today it is a much-needed demand to make reform in the current appointment procedure and for this, a new and amended form of NJAC bill is needed with full independence to the judiciary with maintaining the transparency and faith.

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