In my earlier blog, I had written about the Collegium system of appointing judges in High the Court (HC) and the Supreme Court. The Collegium system was coming under criticism from many people, associations, civil rights groups, and even sections of the judiciary. Their contention was That India is the only country where judges appoint themselves and have the power of determining their transfers. In order to have a more transparent system, the National Judicial Appointment Commission Act (NJAC) was enacted. The NJAC was established by the 99th Constitutional Amendment Act 2014, which was passed by both houses of Parliament, that is, Lok Sabha and Rajya Sabha.
This act proposed that members of NJAC would be composed of members from legislative, judicial, and civil society. The composition of NJAC was as follows
1 The Chief Justice of India (CJI) would be the Chairperson of NJAC.
2 Two senior most judges of SC.
3 The Law and Justice Minister.
4 Two eminent persons would be selected by a committee which would be composed of the Prime Minister, the CJI, and the Leader of the Opposition.
Procedure for filling up vacancies
- The Central Government will make a reference to NJAC in cases of vacancies in the SC or HC.
- Existing vacancies would be notified to the NJAC within thirty days.
- A reference would be made by NJAC six months prior to when a vacancy arises due to the completion of the term.
- In scenarios of vacancy due to the death or resignation of judges, a reference would be made to NJAC within thirty days of the occurrence of such events.
Procedure for selecting the SC judges
- For the selection of CJI- NJAC would recommend the senior-most judge of the SC for the office of CJI.
- For the selection of SC judges- NJAC shall recommend the name of judges on the basis of their merit and ability.
- Veto power regulation- if any two members of the commission disapprove of any name, NJAC would not recommend that judge.
Procedure for selecting the HC judges
- CJ of HC- for this purpose NJAC would recommend judges on the basis of senior, ability, and merit combined.
- Other judges of the HCs- NJAC would nominate names, and then send those names to the CJ of the concerned HC for his views. The CJ would then consult with two senior-most judges or some other judges and advocates if required. The view of the CM and governor are also taken into consideration before making the recommendation.
- Veto power regulation- if any two members of the commission disapprove of any name, NJAC would not recommend that judge.
Transfer of CJ and HC judges- The NJAC is the chief body responsible for making recommendations for the transfer of HC judges and CJ.
Role of the President
- The President has the power to ask NJAC to reconsider their recommendations.
- However, if NJAC makes a unanimous decision while reconsidering, then the President has to make the appointment as per NJAC’s recommendations.
Why was the NJAC Act struck down
In 2015, a five-judge bench of SC comprising Justice Madan Lokur, Justice JS Khehar, Justice Adarsh Kumar Goel, Justice Kurian Joseph, and Justice Chelameshwar Joseph struck down the NJAC Act along with the 99th Constitution Amendment Act in a 4:1 ratio. It was termed unconstitutional and was struck down citing it as having affected the independence of the judiciary. The bench decided that the Collegium system would still be operative in the appointment of judges, although they pointed out the Collegium system is not accurate and the process of ‘judges appointing judges’ should be examined.
In the next part of this article, I will write about the issues with the collegium system, and what is the way forward on this subject.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
21st December 2022