The National Judicial Appointments Commission Bill, 2014 and the 121st Constitutional Amendment Bill was passed by the Rajya Sabha on 13 March 2014. Earlier on 12 March 2014 the two bills were passed by the Lok Sabha by voice vote.
As soon as it gets the consent of different States (by virtue of being a Constitutional Bill) and the President’s assent the National Judicial Appointments Commission (NJAC) with Constitutional status will become a reality. With the NJAC becoming a reality the collegiums system devised by Supreme Court in 1993 will become a thing of past.
The Constitutional Amendment Bill seeks to amend Article 124 (2) of the Constitution that provides for the appointment of the judges of higher judiciary and inserts Article 124A, Article 124B and Article 124C providing for composition and function of the National Judicial Appointments Commission.
On the other hand, National Judicial Appointments Commission Bill, 2014 lays down the procedure to be followed by the proposed six-member body for appointment and transfer of judges of higher judiciary. It empowers Parliament to enact a law regarding composition, function and procedure of the NJAC.
Composition and Function of NJAC
• The NJAC comprises of six-members which include Chief Justice of India as Chairman, Union Law Minister, two senior-most Supreme Court judges and two eminent persons.
• The two eminent persons will be selected by a collegiums comprising of Prime Minister, Chief Justice of India and leader of the opposition or the leader of the single largest party in the Lok Sabha.
• Besides, one eminent person should belong to the SC, ST, women or minority community, preferably by rotation and will have tenure of three years.
• The NJAC will recommend to the President for the appointment and transfer of judges of higher judiciary, viz., Supreme Court and High Courts.
• It will also make recommendations for the appointment of Chief Justice of India and Chief Justices of High Courts.
Before going into the arguments in favour and against the NJAC, it would be pertinent to understand about collegiums system
Collegium System.
The Collegium system was in consonance with the trend of judicial activism undertaken by the Supreme Court in the late 1980s. The system got concrete shape in 1998 in Third Judge case wherein SC laid down elaborate selection process of judges of higher judiciary. Under the Collegium system, the Chief Justice of India would consult the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments.
The Constitutional Amendment Bill seeks to amend Article 124 (2) of the Constitution that provides for the appointment of the judges of higher judiciary and inserts Article 124A, Article 124B and Article 124C providing for composition and function of the National Judicial Appointments Commission.
On the other hand, National Judicial Appointments Commission Bill, 2014 lays down the procedure to be followed by the proposed six-member body for appointment and transfer of judges of higher judiciary. It empowers Parliament to enact a law regarding composition, function and procedure of the NJAC.
Composition and Function of NJAC
• The NJAC comprises of six-members which include Chief Justice of India as Chairman, Union Law Minister, two senior-most Supreme Court judges and two eminent persons.
• The two eminent persons will be selected by a collegiums comprising of Prime Minister, Chief Justice of India and leader of the opposition or the leader of the single largest party in the Lok Sabha.
• Besides, one eminent person should belong to the SC, ST, women or minority community, preferably by rotation and will have tenure of three years.
• The NJAC will recommend to the President for the appointment and transfer of judges of higher judiciary, viz., Supreme Court and High Courts.
• It will also make recommendations for the appointment of Chief Justice of India and Chief Justices of High Courts.
Before going into the arguments in favour and against the NJAC, it would be pertinent to understand about collegiums system
Collegium System.
The Collegium system was in consonance with the trend of judicial activism undertaken by the Supreme Court in the late 1980s. The system got concrete shape in 1998 in Third Judge case wherein SC laid down elaborate selection process of judges of higher judiciary. Under the Collegium system, the Chief Justice of India would consult the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments.
The judiciary, in fact, rewrote the constitutional arrangement enumerated in Article 124 and Article 217 of the Indian Constitution which provided for a plurality of functionaries (executive and judiciary) by ensuring plurality of functionaries only within the judicial system.
Arguments in Favour
It is a fact that collegiums system over the years has come under severe criticism on account of opaqueness in appointment and transfer of judges of higher judiciary. Besides, the growing corruption and nepotism within the judiciary calls for transparency. The recent revelation by Jusitce (retd) Markandey Katju and Justice Dinakaran case is a pointer towards reforming the judiciary.
Besides, it is criticised that collegiums system does not provide an adequate tenure for the chief justices of the High Courts, the consultation process is secretive and unknown to the judiciary and the public, and meritorious candidates from the bar and high courts are denied an opportunity to serve on the bench for undisclosed reasons.
Arguments against the NJAC
The legal fraternity argues that NJAC is a ploy to bring the judiciary within the ambit of executive in the garb of reforming collegiums system. Thus NJAC will limit the judiciary in scrutinising the executive’s malafide actions and its overreach.
It will compromise the independence of judiciary which has been cornerstone in ensuring the peoples’ faith in democracy. The recent role of judiciary in 2G and Coalgate scam is a point in this direction.
Arguments in Favour
It is a fact that collegiums system over the years has come under severe criticism on account of opaqueness in appointment and transfer of judges of higher judiciary. Besides, the growing corruption and nepotism within the judiciary calls for transparency. The recent revelation by Jusitce (retd) Markandey Katju and Justice Dinakaran case is a pointer towards reforming the judiciary.
Besides, it is criticised that collegiums system does not provide an adequate tenure for the chief justices of the High Courts, the consultation process is secretive and unknown to the judiciary and the public, and meritorious candidates from the bar and high courts are denied an opportunity to serve on the bench for undisclosed reasons.
Arguments against the NJAC
The legal fraternity argues that NJAC is a ploy to bring the judiciary within the ambit of executive in the garb of reforming collegiums system. Thus NJAC will limit the judiciary in scrutinising the executive’s malafide actions and its overreach.
It will compromise the independence of judiciary which has been cornerstone in ensuring the peoples’ faith in democracy. The recent role of judiciary in 2G and Coalgate scam is a point in this direction.
Besides, it is argued that the NJAC has not laid down an objective procedure for appointments. These include norms to ensure transparency in nominations, criterion for assessing the suitability of the candidates and objective guidelines for determining meritorious candidates. Judges must also be ensured security of tenure as well as an adequate tenure period through the new mechanism.
Conclusion
The independent and transparent judiciary is the sine qua non of a healthy democracy. In order to ensure independence of judiciary it is pertinent that the enacting of law relating to composition, function and procedure relating to NJAC should not be left to the Parliament which it can do it by simple majority. On the other hand, the wider representation in the selection process will ensure that there is transparency and accountability in appointments and transfer of judges of higher judiciary.
Conclusion
The independent and transparent judiciary is the sine qua non of a healthy democracy. In order to ensure independence of judiciary it is pertinent that the enacting of law relating to composition, function and procedure relating to NJAC should not be left to the Parliament which it can do it by simple majority. On the other hand, the wider representation in the selection process will ensure that there is transparency and accountability in appointments and transfer of judges of higher judiciary.
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