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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