Supreme Court to Consider Plea to Revive NJAC
Understand the Supreme Court’s consideration of a plea to revive the NJAC, the evolution of judicial appointments in India, the functioning of the Collegium system, key concerns, NJAC structure, and whether NJAC can improve transparency and accountability in judicial appointments.
Supreme Court Review of NJAC Revival and India’s Judicial Appointments System
In a significant development, Chief Justice of India Surya Kant has agreed to consider a plea seeking to revive the National Judicial Appointments Commission (NJAC) and end the Collegium system of appointing judges.
How has the evolution of judicial appointments happened in India since independence?
The evolution of judicial appointments in India can be traced through three distinct phases:
- Executive Dominance (1950-1993): The original Constitution gave the President (acting on the advice of the Council of Ministers) the power to appoint judges in consultation with the judiciary (primarily the CJI). In practice, this often led to executive primacy in appointments.
- The Collegium Era (1993-Present): Through the “Three Judges Cases” (1981, 1993, 1998), the Supreme Court effectively transferred the power of judicial appointments to itself. The Collegium system, a body of the senior-most judges of the Supreme Court, was born, making the executive’s role largely formal.
- The NJAC Interlude (2014-2015): Parliament, seeking to restore a balanced role for the executive, passed the 99th Constitutional Amendment and the NJAC Act, 2014. This commission included the judiciary, executive, and eminent persons. However, the Supreme Court struck it down in 2015, reinstating the Collegium system.
What is the collegium system?
- The Collegium system is an extra-constitutional, judge-led mechanism for the appointment and transfer of judges to the Supreme Court and the High Courts of India. It is not mentioned in the original Constitution but was established by the judiciary through its own interpretations.
- For the Supreme Court, the Collegium is headed by the CJI and comprises the four other senior-most judges of the Court.
- For High Courts, the Collegium is headed by the CJI and comprises the two other senior-most judges of the Supreme Court.
Why is the collegium system constituted?
- The Collegium system was constituted primarily to uphold the independence of the judiciary.
- The Supreme Court, in the Three Judges Cases, reasoned that the “primacy” of the judiciary in appointments was essential to insulate the judiciary from executive and political interference, thereby protecting the basic structure of the Constitution, which includes the separation of powers and judicial independence.
What are the major concerns associated with the collegium system?
Despite its intent, the Collegium system faces widespread criticism:
- Lack of Transparency: The process is opaque, with deliberations and reasons for selecting or rejecting candidates not made public. It has been described as an “opaque secrecy.”
- Nepotism and Favouritism: Critics argue it fosters an “old boys’ club” where judges are appointed based on personal connections rather than merit alone.
- Ignoring Merit: The system is alleged to sometimes overlook talented lawyers and judges in favor of less deserving candidates.
- Lack of Accountability: Being outside the purview of the Right to Information (RTI) Act and any formal statutory framework, the Collegium is not accountable to any other constitutional body.
- Administrative Inefficiency: The process is often slow, leading to a high number of vacancies in the higher judiciary.
What is the National Judicial Appointments Commission (NJAC)?
- The National Judicial Appointments Commission (NJAC) was a proposed constitutional body established by the 99th Constitutional Amendment Act and the NJAC Act, 2014. Its composition was designed to be broad-based:
- The Chief Justice of India (Chairperson)
- Two other senior-most Supreme Court Judges
- The Union Minister of Law and Justice
- Two eminent persons, nominated by a committee consisting of the CJI, the Prime Minister, and the Leader of the Opposition.
- The NJAC was intended to replace the Collegium system with a more collaborative appointment process involving both the judiciary and the executive.
Will NJAC be able to address concerns associated with the collegium system?
The NJAC was designed to address the concerns of the Collegium system, but its own structure raised new issues:
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Potential Benefits:
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- Increased Transparency: A statutory commission with a defined process could bring more structure and transparency than the informal Collegium.
- Broader Input: Inclusion of the Law Minister and eminent persons would introduce diverse perspectives and break the judiciary’s monopoly.
- Systemic Check: It would create a system of checks and balances, preventing potential groupthink within the judiciary.
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Potential Drawbacks:
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- Executive Overreach: The Supreme Court, in its 2015 judgment, held that the NJAC violated the “independence of the judiciary” by giving the executive, through the Law Minister and two eminent persons (who could be vetoed by a minority), a significant role. This was seen as a threat to the separation of powers.
- Politicisation of Appointments: Critics feared it would pave the way for political interference in judicial appointments, undermining judicial independence.
However, experts like Fali S Nariman believe that the adoption of the NJAC, with judicial members in the majority, would not only ensure transparent judicial appointments but also the separation of powers.
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