NATIONAL JUDICIAL APPOINTMENT COMMISSION

This article was written by Arohi Kashyap a student of Northcap University.

The National Judicial Appointment Commsion, NJAC was a proposed body lasting only for seven moths and three days which would have been responsible fo the judicial appointment and transfer in India. The Commission was established when the Constitutional Amendment Bill and the NJAC Bill[1] was passed by the Parliament[2] and ratified by the President of India Pranab Mukherjee on December 31^st 2014.

The National Judicial Appointment Commission would replace the collegium system for judicial appointment. This became the 99^th amendment to the constitution i.e. Article 124A of the Constitution of India. It was passed by the parliament due to the growing concern of the judicial system then used i.e. the collegium system and that it resulted in no proper system of checks and balances.

However, after the enforcement of NJAC, there was widespread controversy that it violated the constitution of India, as there was legislative interference in the judiciary’s functions and roles.

Hence, this Act and amendment only lasted for seven moths and three days, when on October 16^th 2014, the the Constitutional Bench of the Supreme Court by a 4:1 majority upheld the collegium system and quashed the NJAC in Supreme Court Advocates-on-Record Association Vs. Union of India [3].

It was held that NJAC was unconstitutional and violated the separation of powers that our system follows. Hence the 99^th amendment was struck down and collegium system for appointment was reestablished.

However, there is till widespread controversy on this as NJAC, although not free of flaws was still less flawed than the collegium system. It provided transparency, diversity in opinion and mind-set, proper system of check-and-balances and also provided a more democratic approach to judicial appointment in a democratic country.

Composition of NJAC

According to the amendment in the constitution and the NJAC Act, the NJAC would consist of the following people

• Chief Justice of India (Chairperson, ex officio)
• Union Minister of Law and Justice
• Tow senior judges of the Supreme Court next to the Chief Justice of India (ex officio)
• Two eminent persons who must be nominated by the committee consisting of the

1. Chief Justice of India
2. Prime Minister of India
3. Leader of Opposition in the Lok Sabha, if either one or both of the eminent persons is from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Procedure For Selection Of Supreme Court Judges and High Court Judges

Chief Justice of India

The Commission recommends the senior-most judge of the Supreme Court for appointment as Chief Justice of India, provided that he/she is seen to be  fit to hold the office. However, this must be according to the knowledge one possess rather than the age.

Supreme Court Judges

The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.

The Commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Chief Justices of High Courts

The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges.

The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other High Court Judges

The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges and then forward such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Why National Judicial Appointment Commission? / Benefits of NJAC

The introduction of the NJAC brought with it a spread of controversy, debate, arguments, analytical and critical opinions from legal professionals, jurists and even the common man. There was support and disdain for the NJAC. The support was mainly along the lines that the NJAC allowed for all that the collegium forbade. There was an increase in transparency, a diversity in the mindset and moral compass of the judicial officers and provides a proper system of check-and-balances for the judiciary by the legislative.

Many objections against the NJAC was that it violated the doctrine of separation of powers. However, what the criticizers of the commission fail to realize is that in India we do not follow a strict separation of powers.

In the case of Indira Nehru Gandhi v. Raj Narayan, the SC observed that in the Indian Constitution there is a separation of powers in a broad sense only. A rigid separation of powers as under the American or Australian Constitution does not apply in India.

In the case of Ram Jawaya Kapur v. State of Punjab, the SC held ‘Indian Constitution has not recognized the doctrine of separation of powers in the absolute rigidity but   the functions of different parts or branches of the government have been differentiated and consequently it can be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions of other organs’.

These judgments are supported by the fact that in the Constitution of India, there is no specific legislation or Article that specifies the separation of powers.

 Doctrine of separation of powers was not given constitutional status in our Constitution finally but it does clearly seem that the constitution of India has been made keeping the separation of powers doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution itself.[4]

The only Article that somewhat talks about the separation of powers is Article 50 under which there must be a separation of judiciary from executive ‘The State shall take steps to separate the judiciary from the executive in the public services of the State’.

However, the issue in the NJAC is of the legislative combining with the judiciary to appoint judges.

In India, the doctrine of separation of powers is perceived to be water tight compartments. Our constitution provides a distinction of powers and functions however, there is functional and personal overlapping of the different organs.

1. Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive.
2. Even the power to amend the constitution by the parliament is subject to judicial scrutiny of the Court.
3. The President of India in whom the executive power of India vests, can exercise the law making power in the shape of ordinance making power under Art. 123.
4. The President of India also has judicial powers in the way of entertaining clemency petition under Article 72 of the Constitution and the Governor has similar powers under Art. 161.
5. The Counsel of Ministers is selected from the legislature and they are responsible for making the laws but they also exercise judicial powers in cases of breach of its privileges, impeachment of President and removal of the judges.
6. Emergency can be declared by the President on aid and advice of the Counsel of Ministers. Here the executive imposes emergency with the consultation of legislative.
7. President’s decisions can be sent for Judicial Review.

These overlapping legislatures are present to maintain a system of checks and balances, which India follows more strictly.

Similarly, the NJAC provides for a system of checks-and-balances, which also increases the transparency of the judicial appointment procedure.

It also ensures an end to the give and take culture established by the collegium system as there are several diverse bodies that are now in charge and that influence the decision making process.

The NJAC also reduces the chances of nepotism and corruption and also ensures a diverse mindset and moral compass of the judges due to the diverse mindset of the commission personnel which would ensure justice for the citizens at large.

Drawbacks of National Judicial Commission Of India

Though the NJAC repairs several flaws in the collegium system, it has flaws of its own. Some drawbacks of the National Judicial Appointment Committee are given below:

1. Missing Element of ‘Merit’

One of the flaws of the collegium system was the confusion over the merit of the judicial appointment. The commission has failed to address this. Merit is one of the most important criteria for making judicial appointments and has not been elaborated upon by the drafters of the Act. NJAC fails to lay down proper criteria on the basis of which judges would be nominated and selected leaving room for arbitrariness.

2. Excessive Legislative Interference

The NJAC Act’s Sec. 13 allows the Parliament to change the rules and regulations in the Act. Here the system of checks-and-balances India holds would be compromised.

The constant interference of the legislature at every stage in this procedure will adversely affect the working of the Commission, which needs to be guaranteed a basic level of autonomy in it’s functioning. Sec. 13 of the Act can jeopardize the entire procedure f the appointment contemplated while passing this Act.[5]

3. NJAC can result in a conflict between the two structures of the Indian Constitution namely, Democratic Accountability and Judicial Independence.

4. NJAC is titled towards executive rather than judiciary; selection of eminent members implies greater role of executives/veto right can nullify judicial choices but the opposite holds true.
5. NJAC could be used as a tactic to bring judiciary within the ambit of the executive for supposedly reforming the collegium system.
6. NJAC has failed to lay out objective procedure for appointments.

[1] National Judicial Appointments Commission Bill

[2] Passed by Lok Sabha on August 13^th, 2014

  Passed by Rajya Sabha on August 14^th, 2014

[3] WRIT PETITION (CIVIL) NO. 13 OF 2015

[4] http://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and-separation-of-powers-constitutional-law-essay.php

[5] Manupatra- The NJAC Act – Is It the Perfect Remedy