This is my concluding article (blog) on the topic of Collegium system of appointing judges, and why the government wants to reintroduce the NJAC Act.
The Supreme Court (SC) and the Centre are at odds over how judges should be appointed in the higher judiciary. In recent weeks the government has reiterated the need for a National Judicial Appointment Commission (NJAC), prompting the SC to defend the present Collegium system.
Union Minister for Law and Justice Kiren Rijiju, in November, started the debate on the Collegium system of appointments and commented this system was opaque and needed to be reconsidered. His sentiment was echoed shortly after the Vice President and Rajya Sabha Chairman Jagdeep Dhankar when remarked in Parliament that it was never too late to reflect on the NJAC. He said the SC’s 2015 judgment striking down the NJAC Act was a severe compromise of parliamentary sovereignty and disregard for the mandate of the people. The basic problem is that the Collegium system is not rooted in the Constitution. Instead, it has evolved through judgments of the SC.
Now if you want to replace the Collegium system, it calls for a Constitutional Amendment Bill; it requires a majority of not less than two-thirds of MPs present, and voting in Lok Sabha as well as Rajya Sabha. It also needs the ratification of legislatures of not less than one-half of the states.
Issues with the current Collegium system
NJAC was struck down by the SC citing it to be unconstitutional and void, but that does not mean that the existing is flawless. Even while striking down the NJAC, the bench held that the system of judges appointing judges is not accurate and needs to be reconsidered. It has been 29 years since the start of the Collegium system, but a better alternative is yet to be found. The main issues pertaining to the Collegium system are:
- This system does not provide any guidelines or criteria for the appointment of the SC judges and it increases the ambit of favouritism.
- In this system, there are no criteria for testing the candidate or for doing a background check to establish the credibility of the candidate. The absence of an administrative body is also a reason for worry because it means that members of the Collegium system are not answerable for the selection of any of the judges.
- The ‘Second Judge Case’ (mentioned in an earlier blog) established the supremacy of the judiciary over the executive. This system disturbs the principle of checks and balances because it ensures that no organ of democracy is exercising its power in an excessive manner.
- The Collegium system lacks transparency.
- Nepotism has been often witnessed in the judiciary due to a lack of criteria for the appointment of judges. Nepotism leads to mediocrity due to biases in the judicial setup.
Now it has become quite evident that neither the NJAC nor the Collegium system is accurate, both have shortcomings. As per legal experts, there are certain steps that should be taken in order to amend NJAC
1 NJAC needs to be amended to keep the judiciary independent. The earlier NJAC Act gave power to the legislature and executive thus interfering with the independence of the judiciary.
2 According to a few senior judges of the SC, retired civil servants need to be inducted into the body appointing judges.
3 In the earlier 2015 judgment, justice JS Khehar raised issues regarding the involvement of the Minister of Law and Justice in the commission appointing judges. So, any bureaucrat or former civil servant should replace him in the commission.
4 Since the Collegium system lacks transparency, the new system should have transparency in the selection procedure.
5 The SC needs to lay down certain guidelines for appointing judges and those guidelines should be strictly followed. Apart from that, all the notifications should be issued in the public domain to make the process more transparent.
In the end, it is really sad that an important pillar of democracy is crumbling owing to the lack of the system in the process of judicial appointment. It has been almost 8 years since the NJAC Act was introduced. The matter is very complex because, on one hand, the judiciary should act independently, but on the other hand, the legislature and the executive cannot be completely excluded. The only reasonable solution is to amend the NJAC Act in a manner in which the powers of all the three pillars, judiciary, legislature, and executive are well defined, and the judicial appointments are carried out in its accordance to ensure transparency, and to give systematic and methodical approach towards the appointment of judges.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
22nd December 2022