Judicial Appointments in India: Collegium vs NJAC

Context

In recent weeks, the government has reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the apex court to defend the present Collegium system. This has raised the debate over the Collegium and NJAC between the Supreme Court and the Centre.

Probable Question

What are the two systems of the appointment of Judges that has triggered the fresh debate on the judicial system in India? (150 words, 10 marks)

About the Collegium system 

• The Collegium system is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
• It is to resolve the years of issues between the judiciary and the executive, the collegium system was born. 
• The Chief Justice of India (CJI) and four senior-most Supreme Court (SC) judges recommend appointments and transfers of judges.
• The system pointed out instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges, and two supersessions to the office of the CJI in the 1970s.
• It is meanwhile led by the incumbent Chief Justice and the two seniormost judges of that court.

Evolution of Collegium system: The Three Judge Cases 

The system basically evolved in the three Judges’ cases:

• In the First Judges case, the court held that the consultation with the CJI should be “full and effective”. 
• The Second Judges case introduced the collegium system in 1993, as they ordered the CJI to consult a collegium of his two senior-most judges in the apex court on judicial appointments, such a “collective opinion” of the collegium would have primacy over the government. 
• The Third Judges case in 1998, expanded the judicial collegium to its present composition of the CJI and four of its senior-most judges.

Constitutional Provisions for the appointment of Judges:

• Article 124 (2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
• Article 217: Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years

Causes for demand to replace the Collegium system

• Transparency: Critics say that it lacks transparency since it does not involve an official mechanism or secretariat. 
• Unclear: It is unclear when the Collegium meets or how it takes its decisions.
• Representation: The Collegium system has not been able to address the issue of the widest possible representation.
• Huge Pendency: The Collegium system has been blamed for the huge pendency of cases in courts to vacant posts of judges. 
• Opaque: The collegium system, the current system of appointment of judges was “opaque” and needed to be reconsidered.

Procedure for Replacement of the Collegium system

• A Constitutional Amendment Bill will be needed.
• A majority of not less than ⅔ of MPs (Members of Parliament) present and voting in Lok Sabha as well as Rajya Sabha, will be required. 
• The ratification of legislatures of not less than ½ of the states, will also be needed.

About the National Judicial Appointments Commission (NJAC)

• Establishment: The Constitution (99th Amendment) Act established the NJAC and the NJAC Act, was passed by Parliament in 2014.
• Aim: It is to set up a commission for appointing judges, replacing the Collegium system. 
• Significance: This would essentially increase the government’s role in the appointment of judges.
• The laws were repealed in October 2015 after the Supreme Court struck them down.

Composition of NJAC 

• The Chief Justice of India as the ex officio Chairperson.
• Two senior-most Supreme Court Judges as ex officio members.
• The Union Minister of Law and Justice as ex officio members. 
• Two eminent persons from civil society (one of whom would be nominated by a committee consisting of the CJI, Prime Minster, and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.

Way Forward

• It is expected that the Centre’s criticism of the Collegium system indicates its plans to bring back a Bill to re-introduce the NJAC. 
• The NJAC is expected to be back or at least keep the threat of it alive so as to get the judiciary to fall in line.
• Subordinating the judiciary to executive control would be to compromise its independence at the very moment of appointment. 
• NJAC is expected to cover the issues that are prevalent in the Collegium system.

News Source: The Indian Express

https://indianexpress.com/article/explained/explained-law/judiciary-appointment-of-judges-collegium-system-njac-debate-explained-8329397/

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