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National Judicial Appointments Commission

National Judicial Appointments Commission (NJAC) is a proposed body responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission is proposed to be established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (One Hundred and Twenty First Amendment Bill) 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.

The NJAC will replace the collegium system for the appointment of judges as mandated in the existing pre-amended constitution by a new system. Along with the Constitution Amendment Bill, the National Judicial Appointments Commission Bill, 2014, was also passed by the Lok Sabha and the Rajya Sabha to regulate the functions of the National Judicial Appointments Commission.The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India on 31 December 2014.

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:

  • Chief Justice of India (Chairperson, ex officio)
  • Two other senior judges of the Supreme Court next to the Chief Justice of India - ex officio
  • The Union Minister of Law and Justice, ex-officio
  • Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.



Functions of the Commission

As per the amended constitution, the functions of the Commission include the following:

  • Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
  • Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
  • Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.

Procedures to be followed by the Commission

The National Judicial Appointments Commission Bill, 2014, has laid down the following
procedures for the selection of the Judges of the higher judiciary.
Procedure for Selection of Supreme Court judges.

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 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.



Three Judges Cases

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 cases

Following are the three cases:

1. S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case)
2. Supreme Court Advocates-on Record Association vs Union of India - 1993
3. In re Special Reference 1 of 1998

Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993. There is no mention of the collegium either in the original Constitution of India or in successive amendments. Although the creation of the collegium system was viewed as controversial by legal scholars and jurists outside India, her citizens, and notably, Parliament and the executive, have done little to replace it. The Third Judges Case of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system.

On the 5th of September, 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary. The critical aspect about the new setup that the Government through the amendment seeks to achieve is the composition of the judicial appointment commission, the responsibility of which the amendment bill lays on the hands of the Parliament to regulate by way of Acts, rules, regulations etc. passed through the regular legislative process.

Critical analysis

Equal Balance Of Power: The judicial members of the Commission have been placed on an equal platform with the other three members, giving the judiciary an equal and not a majority say, despite the obvious inference that regarding appointment of members of the Judiciary, the opinion of the members of the judiciary must attach with it higher significance than that of non members.

CJI Only A Nominal Head: The Chief Justice of India, despite being the Chief Justice and head of the commission, has no casting vote in case of a tie, nor a supreme veto power, while a veto by any two members of the commission including the CJI nullifies any recommendation put before the panel. With the government appointing two persons, how can there be the slightest guarantee of unbiased play? Legitimate recommendations made by judicial members can be easily vetoed out of the run, and voila! you have the Executive’s favourite judge on the bench in yet another scam-ridden case, and members of the Executive before it.

Unjustified Executive Control: 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. Further, the provisions state that the CJI is to be the senior most judge of the Supreme Court provided he is ‘fit’- a convenient throw-in of a rather subjective word to validate any other recommendation made by the Executive through its three pawns within the commission. Further, the provisions can at any point of time be altered by the Parliament to suit its whimsical fancies.

Two Separate Bills: What adds to the suspicion surrounding the Government’s intentions is the fact that two bills have been passed here – the National Judicial Appointment Commission Bill and the 121st Constitutional Amendment Bill. Why weren’t the provisions of the NJAC Bill accommodated within the Amendment Bill itself? 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.

The Executive perhaps chose to sidestep scenarios where flexible control does not rest with them – exactly why I earlier asserted that this collegium substitute is a carefully put together farce of a substitute system, aimed at having the judiciary dance to the fiddle of executive caprice.

It is most fortunate that multiple PILs challenging the Acts are lined up to be heard by the Supreme Court. That the government, despite being a major litigant, has an equal say in a matter where it has a rather substantial interest is rather unfortunate. The NJAC’s implementation will result in the subservience of the judiciary to the executive, thus undermining the long term judicial independence and autonomy in the country.

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