Explained: Appointment of Judges

Context

Recently, amidst ongoing debate between the Central government and the Supreme Court over the judicial appoinments, the Vice-President of India commented by referring the 2015 verdict of the SC which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment.

Probable Question

How did the National Judicial Appointments Commission come into being? Why was it later struck down as ‘unconstitutional’? (150 words, 10 marks)

About the National Judicial Appointments Commission (NJAC)

Formation: 

• In August 2014, Parliament passed the Constitution (99th Amendment) Act, along with the National Judicial Appointments Commission (NJAC) Act. 
• The two Bills got the President’s assent on December 31, 2014. 
• Objective: 
  • The 99th Amendment and NJAC Act, together provided for the creation of an independent commission to appoint judges to the Supreme Court (SC) and High Courts (HC). 
  • This commission was to replace the collegium system. 

Appointments under the NJAC Act

• The Chief Justice of India and Chief Justices of the HCs were to be recommended by the NJAC on seniority. 
• The judges of the SC and HC were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations. 
• The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it. 
• In the collegium system, senior-most judges make appointments to the higher judiciary.

Changes in the Constitution (99th Amendment) Act

The Constitution (99th Amendment) Act, introduced three primary Articles:

• Article 124A which created the NJAC, a constitutional body to replace the collegium system, 
• Article 124B which conferred the NJAC with the power to make appointments to Courts, 
• Article 124C which accorded express authority to Parliament to make laws regulating the manner of the NJAC’s functioning. 

Also Read: Indian Constitution: Why and How?

Fundamental Rights in the Indian Constitution

Cause for which NJAC challenged

• In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea, contending that both the 99th Amendment and NJAC Act were “unconstitutional” and “invalid”, arguing that:
• The 99th Amendment took away the “primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India”. 
• It invoked the Second Judges Case to say that CJI primacy had to be protected. 
• The amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges was an integral part. 

The Centre’s Argument

• The Second Judges case was not valid in the case of the NJAC as the “very basis” of the ruling was now gone. 
• The Act in no way took away the primacy of the judiciary but in fact, diluted the power of the executive as only one member, the Law Minister, was in the NJAC as opposed to three SC judges. 
• The amendment was “perfectly consonant” with the basic structure as it strengthened the “independence of the judiciary, checks and balances and democracy”. 
• The collegium worked on a system of “intra-dependence”, where there was “no transparency”.

The Supreme Court Ruling

In October 2015, the five-judge bench of the top court hearing SCAORA’s plea gave the following ruling, with a 4:1 majority:

• The NJAC was “unconstitutional” and violated the “basic structure of the constitution”. 
• The Bench admitted that even the collegium system of “judges appointing judges” is not well.
• There is a need to improve the system of judicial appointments.

News Source: The Hindu

https://epaper.thehindu.com/ccidist-ws/th/th_delhi/issues/17736/OPS/GVKAJUC3M.1+G3HAJUKBR.1.html

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