Issues Surrounding the NJAC

Published On: 30th June, 2024

Authored By: Yuvraj Pandey
University of Allahabad

Issues Surrounding the NJAC

NATIONAL JUDICIAL APPOINTMENT COMMISSION, 2015

Abstract

This article analyses the legality and implication of the National Judicial Appointment Commission Act, 2015 along with its current status. As the judiciary is the caretaker of the fundamental rights of a person; it provides a sense of belonging and security. It also safeguards and expands the culture, customs, traditions, way of life and moral values of an individual through its judgements by widening its scope. So, we will analyze this act ahead. There have been several arguments related to the constitutional validity of NJAC, struck down judgement by the court on it as well as NJAC’s aim to make the fast-track and transparent appointment of the judges in the higher judiciary of the country. This Act will also explain the functioning of the collegium system and its transparency. The availability of opportunities in terms of employment, and education is also the key highlight of this Act (to make it transparent in this field).

In this Article, different ideologies and research methods have been used to get a better insight into the topic. NJAC along with important 1st, 2nd, 3rd and 4th judges’ cases have faced a lot of back thrashed but the government stand is certainly clear that NJAC will be very helpful as, now, transparency will be allowed in the appointment process of judges in India as well as in the whole judicial system that faces radical discriminatory terms such as nepotism. NJAC tried to provide some relief to the existing judicial system.

Keywords – constitutional validity, basic structure doctrine, separation of power, independent judiciary, executive interference, transparency in appointment.

INTRODUCTION

The Supreme Court of India is the apex decision-making body of the judiciary. The Regulating Act of 1773 established a Supreme Court in Fort William in Calcutta to try civil, criminal and admiralty cases. For the first time, the Federal Court of India was set up under the Government of India Act, 1935. When the Constitution of India came into force on 26 January 1950, the Federal Court of India was substituted by the Supreme Court of India and the judicial system for the new India was established. Part V from Article 124-147 of the Constitution of India deals with the Supreme Court. The Constitution declared Delhi as the seat of the Supreme Court. In the recent past, the total strength of the Supreme Court judges bench reached 34 including the Chief Justice of India. The two new judges who took oath are Justice Prashant Kumar Mishra and Justice K.V. Vishwanath by the Chief Justice of India. [1] Originally, the Supreme Court had eight judges, but the parliament has increased the number over time.

APPOINTMENT OF A JUDGE

The appointment of a judge is done under Article 124 of the Constitution of India. A person can be appointed as the judge of the Supreme Court if he/she (i) Must be a citizen of India, (ii) Must have served as judge of a High Court for at least 5 years or two such courts in succession, (iii) Must have been an advocate of a High Court for at least 10 years or two or more such courts in succession, (iv) Must be a distinguished jurist in the opinion of the president. The Judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution of India. Every appointed Judge must take an oath before the President of India or an appointed person. There is no prescribed minimum age limit for a judge’s appointment. A judge of the Supreme Court serves till the age of 65 years however he may resign before reaching the age of 65 years by writing their resignation to the President of India. The President determines how much money the Supreme Court judges get in salary, benefits, and pensions from the Consolidated Funds of India.

After retirement, a judge of the Supreme Court is prohibited from practicing law in any court in India or pleading before any government authority. As per Article 128 of the Constitution, any retired judge of the Supreme Court can be called back to sit and act as a Supreme Court Judge by the Chief Justice of India with the prior permission of the President. The President must issue an order in order to remove a Supreme Court judge from their position. Each House of Parliament must address the removal procedure with the backing of a special majority, which is defined as a majority of the house’s total membership and a majority of at least two-thirds of the members present and voting.

The ground for removal is “Proven Misbehaviour or Incapacity”.[2] Judges of the higher judiciary are appointed through the Collegium system. The Collegium consist of the Chief Justice of India and four senior-most judges of the Supreme Court. This system is not mentioned in the Constitution of India but has evolved through judicial decisions in various cases.

EVOLUTION OF COLLEGIUM SYSTEM

Earlier the Supreme Court and High Court judges were appointed by the provisions laid down under Article 124 and Article 217 of the Constitution of India. The Executive had a major role to play in the appointment of the judges and the judiciary was looked upon as a mere consulting body.

  • First Judges Case: This was the case of 1982 where the question about the appointment of the judges was raised in the Supreme Court. The seven judges constitutional bench ruled that the Executive has the upper hand in the appointment of the judges. They stressed that “consultation” of the judiciary is not “concurrence”. However, the bench said that the Executive should rightfully consult the judiciary. Overall, The Supreme Court highlighting Article 124 and Article 217, in the P. Gupta v. Union of India, ruled in favour of the respondents and said that the Executive have the ultimate say in the appointment of the judges.[3]
  • Second Judges Case: This was the case of 1993 where the Supreme Court reversed the judgement passed in the First Judges Case of 1982. The Court in the landmark case of Supreme Court Advocates-on-Record Association v. Union of India held that the Judiciary should be independent of the influence of the Executive and the Chief Justice of India should have the primary role in the appointment of the judges. In this case, it was 9 judge bench which overturned the previous case decision. This judgement ended the interruption of the Executive and made the Judiciary independent by starting a new system for the judge’s appointment i.e. Collegium System.[4]
  • Third Judges Case: This was the case of 1998 which reinstalled the control of the Judiciary over the appointment of judges. Supreme Court on the President’s reference expanded the Collegium to a five-member body comprising of Chief Justice of India and four of his senior-most colleagues. This was done under the ambit of Article 143. It is also called as Special Reference Case of 1998[5].

BIRTH OF THE NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC)

After the third judge’s case, the independence of the Judiciary in the appointment of the judges became crystal clear so the Executive in August 2014 passed the 99th Constitutional Amendment Act, 2014 along with the National Judicial Appointment Commission Act, 2014 and a new Article 124A had been inserted in the Constitution. The two acts amended Article 124(2) of the Constitution of India and formed the National Judicial Appointment Commission simultaneously. The act was brought up with the purpose of bringing transparency in the appointment of the judges which the government thinks was not done earlier with proper maintainability and trustworthiness.  The NJAC comprises six members i.e. (i) The Chief Justice of India (ex-officio chairman of the NJAC), (ii) The Union Law Minister, (iii) Two senior-most judges of the Supreme Court and (iv) Two eminent persons belonging to SCs, STs, OBCs or Minorities and Women class which would be selected by a committee composed of the Prime Minister, the leader of the opposition and the Chief Justice of India.[6] Out of the six members, if any two of them disapproved of the proposed name, then the committee would not suggest such a name to the President for the appointment as judge.

UNCONSTITUTIONALITY OF THE NJAC

The Supreme Court in the landmark case of Supreme Court Advocates-on-Record v. Union of India (Fourth Judges Case) struck down the National Judicial Appointment Commission stating it as Ultra virus. However, the judges in their judgement mentioned that “judges appointing judges” is not appropriate and needs to be reformed.  The court’s constitutional 5 judges bench declared NJAC ultra virus and unconstitutional stating that “the arms of the judiciary should be free from the influence and decisions of the Executive as it violates the basic structure of the Constitution of India i.e. independence of the different organs of government”. The decision was taken with the majority of 4:1 in 5 judges’ bench.   [7]

APPOINTMENT OF THE JUDGES IN UNITED KINGDOM

Judicial Appointments Commission: Candidates for judicial office in England and Wales, as well as for certain courts with UK jurisdiction, are chosen by the Judicial Appointments Commission.[8] The JAC is something in tribunals whose jurisdiction extends to Scotland or Northern Ireland. They choose judicial office candidates on the basis of merit from the largest pool of qualified applicants in a fair and transparent competition. JAC is an executive non-departmental public body, sponsored by the Ministry of Justice[9].

APPOINTMENT OF THE JUDGES IN UNITED STATES

Judgeship Appointments by President: As per the Constitution, the United States Senate confirms the nominations of the President for Supreme Court justices, court of appeals judges, and district court judges. Senators and occasionally House members belonging to the President’s political party provide names for potential nominees. Every nominee usually has a confirmation hearing before the Senate Judiciary Committee. According to Article III of the Constitution, these judges are appointed for life.

The Constitution sets forth no specific requirements for judges. Nonetheless, the Department of Justice, which examines nominees’ qualifications, and members of Congress, who normally suggest possible nominees, have established their own unofficial standards.[10]

APPOINTMENT OF THE JUDGES IN FRANCE

The conseillers are the judges of the Court. On the recommendation of the High Council of the Judiciary, they are appointed by proclamation of the President of the Republic. They are chosen from among the judicial order’s judges. Professors of law or lawyers at the Conseil d’états (Council of State) and the Cour de cassation (Court of cassation) may also be considered. Based on their qualifications and experiences, judges are appointed as conseillers in service extraordinaire (councillors in extraordinary service), which is a ten-year term.[11]

APPOINTMENT OF THE JUDGES IN GERMANY

Election and Appointment: The Federal Administrative Court’s judges are nominated for life. At the moment, the Court employs 59 federal judges. A Committee for the Election of Judges elects the judges. This committee is composed of an equal number of members nominated by the Bundestag and the ministers of the federal states (Länder) in charge of the administrative courts. The Committee for the Election of Judges is presided over by the Federal Minister of Justice. It is his and the election committee members’ right to suggest candidates. Each proposed new member is subject to a written opinion from the Federal Administrative Court’s advisory committee on judicial appointments. The Committee for the Election of Judges is not required to accept this vote. By simple majority, it chooses the people it thinks are qualified. If the Federal Minister is satisfied with the outcome, the Federal President appoints the elected members.[12]

ANALYSIS OF THE NJAC AND COURT’S DECISION ON NJAC

The composition of the members of the NJAC was such that it put forward the opinion of not only the legislature and the judiciary but also the opinion of civil society. Given that there are constant accusations that the appointment process for judges is nepotistic and dynastic, the NJAC’s broad membership reflects the desire to make the system of judge nomination more transparent and accessible to the general public. The National Judicial Appointment Commission was the principal body for making recommendations in the transfer and appointment of judges in the High Court and Supreme Court. The Judiciary however stand firmly on the point of safeguarding the basic structure doctrine of the constitution of India i.e. safeguarding the separation of power and the non-interference in the independence of the different organs of the government. The Executive always questions the transparency of the appointment of judges in the Supreme Court and High Court through the Collegium System for which it introduced the NJAC. Overall, we can say that seeing the current status there is a need for reform in the appointment of the judges.

CONCLUSION

The strike down of NJAC and the ongoing dispute between the Judiciary and the Executive stresses the requirement of some middle path in the appointment of the judges in the higher Judiciary. It will be possible only when both organs shake hands together and create a middle path for the same. Both the organs should not focus on the power capturing in each other’s jurisdiction but they should be more concerned about safeguarding the concept of the Constitution and both should try together to implement the Constitution in a more effective way in the society by doing proper power sharing.  

Reference(s):

[1] https://indianexpress.com/article/india/judges-appointed-sc-top-court-function-full-strength-9020287/

[2] The Constitution of India

[3] S.P. Gupta vs Union of India & Anr on 30 December 1981

[4] Supreme Court Advocate-on-Record… vs Union of India on 6 October 1993

[5] In Re: Under Article 143(1) of the…. vs Unknown on 28 October, 1998

[6] The National Judicial Appointments Commission Act, 2014

[7] Supreme Court Advocate-on-Record… vs Union of India on 16 October 2015

[8]https://judicialappointments.gov.uk/#:~:text=The%20Judicial%20Appointments%20Commission%20selects,who%20are%20of%20good%20character.

[9] https://www.gov.uk/government/organisations/judicial-appointments-commission#:~:text=The%20JAC%20is%20an%20independent,to%20Scotland%20or%20Northern%20Ireland.

[10] https://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president#:~:text=Supreme%20Court%20justices%2C%20court%20of,as%20stated%20in%20the%20Constitution.

[11]https://www.courdecassation.fr/en/members#:~:text=They%20are%20appointed%20by%20decree,cassation)%20may%20also%20be%20considered.

[12] https://www.bverwg.de/en/das-gericht/organisation/richter-und-senate#:~:text=Election%20and%20Appointment&text=The%20judges%20are%20elected%20by,Bundestag%20sit%20on%20this%20committee.

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