There had been a lot of hue and cry over the constitution of NJAC (National Judicial Appointment Commission). Antagonists argued that it will curtail the independence of the judiciary and the executive i.e. the government will decide the nitty-gritties of the legal system in India. It was considered as a threat to independent judicial system due to apprehensions regarding politicisation of Justice System. Therefore, the importance of this issue lies in few important questions:
Has Judicial activism in the past few years led the political class to interfere?
Whether we are following the concept of division of power between the legislature, judiciary and executive effectively?
Whether Judiciary itself is accountable to anyone?
What are the options available to find a middle path?
For understanding all these things, it is necessary to know about the historical premise
Background of NJAC
The constitution states that CJI shall be appointed by the President and other such judges shall be appointed by the President in consultation with the Chief Justice of India. Further it states that apart from consulting Chief Justice of India, the President may consult such of the judges of Supreme Court and High Court while appointing other Judges of Supreme Court.
The SC in SP Gupta vs UOI 1982 held that the opinion expressed by Chief Justice of India under Art 124(2), 217(1) and 222(1) was mere consultation and it was not binding on president. The court held that consultation “does not mean concurrence with the CJI”. And the court also held that a judge of HC can be transferred even against his will. But all consultations with the JI shall be full and effective.
However in SCARA vs UOI 1993, the SC over ruled its earlier decision and held that appointment of Judges to SC and HC is an integrated participatory and consultative exercise to select the most suitable person. Therefore the opinion expressed by Chief Justice of India under all above three articles shall enjoy primacy.
The CJI is the sole authority to initiate the process of appointment of Judges to the SC. He shares this responsibility with the Chief Justice of HC while appointing and transferring the judges of HC. The opinion expressed by CJI is not his personal opinion but the opinion of Judiciary as a whole. Therefore while forming his opinion, CJI must consult at least two of the senior most Judges of SC. All such consultation by CJI shall be in writing. In the event of any contrary opinion between constitutional authorities (President and CJI), the opinion of Judiciary expressed through CJI will prevail over that of president.
In Re-appoitment of Judges 1998 case, the SC in its advisory opinion further clarified the legal position on this issue. It stated that the sole opinion of CJI does not constitute consultation as per the above articles. While forming his opinion, CJI must consult at least 4 senior most judges of SC and transfer the judges of HC.
Therefore, there was a group of Judges including CJI (known as Collegium) that had completely bypassed the President by making the latter only a signatory authority.
Present Status of NJAC
The collegium system was questioned on various grounds leading the government to introduce the constitutional amendment act for the constitution of NJAC
There is lack of transparency in the collegium. It is based on personal affiliations and nepotism. A judge having bad relations with the CJI and such judges of SC in the collegium was not recommended despite being meritorious.
The working is fully opaque. The public used to get the names of Judges promoted or transfers only after it is published in the gazette.
As there are a lot of pending cases and rise of judicial activism (Public Interest Litigations) , the collegium itself is not able to meet properly and thus there has been a rise in the number of vacancies in the higher courts.
The Supreme Court in its Judgement of 1993 has held that the word “consultation” is actually “concurrence”. This means that SC ended up changing the constitution itself which is the sole prerogative of parliament/legislature.
After a lot of debate and discussions including Judges appointment model in other countries; the government brought 99th Constitutional Amendment Act which seeks to establish National Judicial Appointment Commission, henceforth called as NJAC.
A new Article, Article 124A provides for the composition of the NJAC. The NJAC would have consisted of:
(i) Chief Justice of India (Chairperson)
(ii) Two senior most Supreme Court Judges
(iii) The Union Minister of Law and Justice
(iv) 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 Sabha)
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.
The Supreme Court struck down the above constitutional amendment on the basis of violation of basic structure of constitution and stated that it violates the principle of separation of power. Antagonists also argue that it will lead to political colours to appointment of Judges. However, they oversee the provision that states that the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. Therefore Judicial independence is maintained. Further, the eminent members appointed are selected by a committee that itself contains CJI and leader of opposition which will do away with any nepotism or political affiliation to the eminent person. Therefore NJAC is one of the great ideas that has been struck down.
Whether NJAC is fool proof and What are the modifications to be made??
So, does it mean that NJAC was fool proof in term of Judicial Appointments? The answer would be a big “No”. The NJAC itself has a few flaws except that it maintains transparency in the appointment and transfer of Judges with due consultation and representation of all the three pillars of the democratic state.
The NJAC will be a great alternative to collegium system if certain changes are made:
The eminent person in the present NJAC does not have any judicial background as a qualification and thus their eminence and expertise can be questioned by others while evaluating a candidate for appointment as a Judge.
The present NJAC system does not call for open competitive merit based applications but rather will select Judges from a list of candidates that have already been under consideration. Therefore, it should be changed to open invitation to all the Judges.
The NJAC, like collegium lacks a secretariat which will act as a back end body to conduct inspection about the Judges and evaluate them on the basis of their past work, Judgements rendered and experience. Therefore a proper secretariat should be made that will provide support to the NJAC.
In lieu of all these things, there are chances that the opaqueness around the collegium and opposition to the NJAC will go away. The backlog of vacancies borne out of transfer and retirement of Judges may also become a thing of the past and will usher in a path of better justice system.