Baba’s Explainer – National Judicial Appointments Commission (NJAC)

  • IASbaba
  • December 12, 2022
  • 0
Governance, Indian Polity & Constitution
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  • GS-2: Structure, organization and functioning of the Judiciary.
  • GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Context: Vice-President entered the heated debate between the Central government and the Supreme Court over the matter of judicial appointments.

  • In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, which the executive considers it as “the will of people”.
  • The seven-year-old verdict has been invoked by both sides-
    • Supreme Court has asked if the government’s “unhappiness” over the failure of the NJAC was why it was sitting on the names recommended by the Supreme Court Collegium.
    • On the other hand, Law Minister has commented on public fora about how the NJAC could have provided a transparent alternative to the decades-old Collegium system of appointing judges.
How are Judges to Higher Judiciary appointed?
  • Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country.
  • Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the Supreme Court and the high courts, “as the President may deem necessary”.
  • Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
  • The Supreme Court has offered diverse meanings of the phrase “consultation”
  • For appointment of Chief Justice of India (CJI): In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s. President appoints CJI.
    • The Union Law Minister would, at an “appropriate time”, seek the recommendation of the outgoing CJI on his successor.
    • Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister who would advise the President on the appointment.
  • In the case of appointment of a judge other than Chief justice, consultation with the Chief Justice is obligatory. The interpretation of the word consultation has evolved over the years which can be summarised as follows:
  • First Judges Case (1981): Also known as S.P. Gupta case (December 30, 1981), the Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
    • It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments.
  • Second Judges Case (1993):
    • SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
    • Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
    • But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
    • The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
    • Thus, the executive element in the appointment process was reduced to a minimum.
    • If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.
  • Third Judges Case (1998):
    • SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
    • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
  • Therefore, currently Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
  • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
  • So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three Supreme Court judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary.
  • The collegium system was born out of years of friction between the judiciary and the executive. This hostility was exacerbated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s.
What were the criticisms of Collegium system?
  • Time and again, it has been widely commented that the collegium is an extra-constitutional or non-constitutional body brought in force by judgments of the Supreme Court virtually wresting the power of appointment of judges.
  • The Constitution of India gave the last word to the President of India but mandated consultation with the Court. These judgments give the last word to the Court mandating consultation with the government. This is considered dilution of principle of “Doctrine of checks & balances”.
  • Not only that, what makes the problem even worse is that there is no seat in the collegium for any non-judge — neither from the executive, the Bar or anywhere else. In other words, there is no one to offer suggestions or raise questions or even to observe what is going on. As a result, the process of appointing Chief Justices to High Courts is shrouded in secrecy.
  • The procedure to be followed by the collegium system is contained in a “Memorandum of Procedure” (MoP). However, there is no actual guidance on how judges are to be selected.
What was the NJAC? How did it differ from the collegium system?
  • In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
    • Parliament passed the bills by unanimity and it was also ratified backed by required number of State legislatures.
  • This commission was intended to replace the collegium system that was in place since the Second Judges Case. NJAC was established to achieve greater transparency and accountability for the appointment of judges.
  • NJAC would have been responsible for the recruitment, appointment and transfer of Judges of Higher Judiciary
  • Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124.
    • Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system
    • Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts
    • Article 124C accorded express authority to Parliament to make laws regulating the the NJAC’s functioning.
  • The NJAC was to be composed of:
    • The Chief Justice of India as the ex officio Chairperson
    • Two senior-most Supreme Court Judges as ex officio members
    • The Union Minister of Law and Justice as ex officio member
    • Two eminent persons from civil society (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 Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)
  • The NJAC Act, meanwhile, prescribed the procedure to be followed by the Commission to appoint judges.
  • The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations”.
  • The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
Why was the NJAC challenged in court?
  • Even before the NJAC Bill was signed into law and the 99th Amendment ratified, multiple petitioners had approached the Supreme Court in 2014 challenging the constitutional validity of the Bills. But the Court did not admit the pleas, citing that it was “premature” to interrupt an ongoing legislative process.
  • In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions of what were now laws.
  • The NJAC never became operational as the then CJI did not find it appropriate to be a part of the commission when it was being challenged in the top court.
  • SCAORA contended that both the Acts were “unconstitutional” and “invalid”. It argued that the 99th Amendment which provided for the creation of the NJAC took away the “primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or “suspended by majority of three non-Judge members”.
  • It invoked the Second Judges Case to say that this primacy had to be protected. It stated that the Amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part.
    • The principle of the independence of the judiciary was derived from the theory of separation of powers, enshrined in Article 50.
    • The “basic structure” doctrine meanwhile is a product of the Kesavananda Bharati judgement (1973). Article 368 grants Parliament a virtual plenary power to amend the Constitution but the Bench had held that Constitution could not be read in a manner that destroyed or infracted the document’s basic structure.
  • It also contended that the NJAC Act was iself “void” and “ultra vires” the Constitution as it was passed in both Houses of the parliament when Articles 124(2) and 217(1) as originally enacted were in force, and the 99th Amendment had not received Presidential assent.
What were the arguments between the Centre and the Supreme Court?
  • Union government, argued in court that the Second Judges case invoked by the petitioners, was not valid in the case of the NJAC as the “very basis” of the nine-judge ruling was now gone.
  • Union government explained that the 1993 bench of the Supreme Court had interpreted Article 124 and held that the term “consultation” was to be read as “concurrence” ), but since the 99th Amendment had replaced that part of the text to say that judges had to be appointed “on the recommendation of the National Judicial Appointments Commission”, the Second Judges case was not relevant.
  • The Centre also argued that the Act in no way took away the primacy of the judiciary but in fact, diluted the power of the executive as only one member, the Law Minister, was in the NJAC as opposed to three SC judges.
  • It also said that the Amendment was “perfectly consonant” with the basic structure as it strengthened the “independence of the judiciary, checks and balances and democracy”, which were “all part of the basic structure”.
  • Government also argued that the collegium was a “failure” and worked on a system of “intra-dependence”, where there was “no transparency”. It argued that the NJAC should be given a chance since it had a component of “hit and trial” like every experiment.
  • On October 16, 2015, the five-judge bench ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”.
  • Majority opinion held that “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,”.
  • Justice Chelameshwar, only dissenter on the Bench, meanwhile, pointed out in his dissent that “transparency” was a vital factor in “constitutional governance” and the collegium proceedings were “absolutely opaque” and “inaccessible” to the public and history.
  • Justice Chelameshwar further wrote that the “assumption” that the primacy of the judiciary in the appointment of judges was a basic feature of the Constitution was “flawed” and supported government’s submission that the absolute exclusion of the executive was violative of the basic feature of “checks and balances”.
  • Significantly, the Bench also admitted that all was not well even with the collegium system of “judges appointing judges”, and that the time was ripe to improve the system of judicial appointments, inviting the government to work on improving the collegium system.
What happened to the bid to reform the collegium?
  • The appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure (MoP), which was issued in 1947 and updated in 1999.
  • The court told the Centre in 2015 to come up with a new MoP in order to make the collegium’s proceedings transparent.
  • This exercise, however, resulted in a year-long deadlock between the executive and the judiciary, over some clauses of the MoP.
  • In 2017, the MoP was finalised but was not adopted the government said it was reconsidering the issue.

Main Practice Question: Does the collegium system clash with doctrine of checks and balances? Comment.

Note: Write answer his question in the comment section.

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