In the recent times you must have come across the term NJAC, which stands for National Judicial Appointments Commission. The legal fraternity is sharply divided over the matter of how to select nation’s senior judges.
The NJAC proposes to make the appointment of High Court (HC) and Supreme Court (SC) judges and Chief Justices more transparent. They will be selected by the commission whose members will be drawn from judiciary, legislature and civil society. Earlier the judges of these courts were appointed by the President of India after consultation with Chief Justice of India (CJI). A collegium system was created, wherein the three senior most SC judges decided on who would by HC or SC judge. NJAC will replace this collegium system.
NJAC will have following members- The CJI will Chairperson, the next two senior most judges, the law and justice minister, two eminent persons, to be selected by a committee comprising the CJI, Prime Minister and leader of opposition.
The NJAC has not yet taken up its mandate. The CJI in 2015 wrote to PM saying that it is neither appropriate nor desirable to attend the meeting or be part of NJAC till the SC decided its validity. The validity of article 124 A, which isz basically did away with the collegiums replacing with the NJAC, is the crux of matter before SC.
Arguments for the creation of NJAC
-It safeguards the separation of powers and the independence of the judiciary from executive, remains intact under the NJAC, as the NJAC’s chairperson is the CJI.
-Furthermore, the NJAC is good for democracy and requires that no organ of the state, including the judiciary, enjoys absolute freedom.
The counter argument is that Parliament made an unconstitutional amendment by introducing Article 124 A.. In the second judges case a nine judge bench laid down the primacy of CJI as part of the basic structure of the constitution and the 99th amendment act simply violate this now.
Arguments for NJAC
-This by itself does not affect the separation of powers. Historically, Parliament has always had power over the judiciary without compromising the separation of powers.
– Even with the separation of powers, it is considered normal to redistribute the powers in favour of one of the pillars of democracy from the other.
– Parliament has been given “legislative supremacy” under the Constitution, which is why it could pass the 99th Amendment that created the NJAC in the first place
Against:
-Article 124 C empowers the legislature to freely change the powers governing the NJAC through the ordinary law-making process. This obviously violates the theory of the separation of powers. It basically gives the legislative pillar massive powers, which can lead to an elected dictatorship by Parliament and ultimately the suppression of democracy.
So even if the Supreme Court held that the NJAC is valid, Parliament should not be able to change the laws related to the Constitution or governance of the NJAC so easily.
.What will happen if NJAC is killed by SC:
On the one hand, if the NJAC were struck down, the doctrine of revival would re-instate the collegium system and make the whole NJAC and the 99th constitutional amendment invalid.
On the other hand, the doctrine of eclipse would call for the Supreme Court to tinker with the process of NJAC carefully so that the current portions of the law that are unconstitutional are removed and the NJAC can then function properly.
As per the experts’ opinion
It would certainly be bold of any bench to completely nullify a constitutional amendment passed by a strong legislative mandate, which could heighten tensions between the executive and judiciary. Furthermore, the opacity of the collegium system has been bothering many people, even those opposed to the NJAC.
The Supreme Court has said in the past that striking out a law is a “grave step” and a “measure of last resort” and its most common response is not to strike down the unconstitutional law, but to interpret it in a way that it is consistent with the Constitution.
As per experts, SC will strike down the Act, uphold the constitutional amendment, and read guidelines into Article 124 A. This could perhaps include a veto power for the CJI, further definition of an ‘eminent person’ and specifying the grounds on which a nominee can be rejected.
The basic objection of judiciary is that with NJAC their exclusive power of selecting judges will be lost, which they will prefer to stay with them. So they are looking out for the constitutional points so that they can say that creation of NJAC is unconstitutional , or they will bargain for more power and say in NJAC.
This is the one instance where ruling party members and opposition members are both supporting for NJAC.
So let us wait and watch for what happens next in this matter.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
9th December 2021