UPSC Interview prep feed Vol.12

Topic: NATIONAL JUDICIAL APPOINTMENT COMMISSION(NJAC)

The president Pranab Mukherjee signed judicial appointment commission bill,2014.with this NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT ,2014 has come into effect.this replaces collegium system to appoint judges of higher judiciary.

The NJAC bill was passed by both the houses of parliament in august 2014. till December 2014 ;it was ratified by the legislature of 16 states ,thus crossing the 50 percent ratification needed by the states in case of a constitutional amendments bills as per article 368 of the constitution.

MAIN FEATURE OF THE NJAC ACT ,2014

(1) It gives NJAC a constitutional status for appointment of judges to the supreme court and the high courts, appointment of chief justice of India, other judges of supreme court and chief justice and other judges of high court.

(2) It also gives the executive an equal role in the appointment of judges to the highest judiciary,as a constitutional body.

(3) It specifies amendments to articles 124 (2) and 217(1) that deals with the appointment of judges in the supreme court and the  high courts respectively. 

(4) Now the judges in the supreme court  and the high court will be appointed by the president in consultation with the NJAC..

(5) Once  the NJAC  is in place then union government has to initiate NJAC within 30 days about the vacancies in the supreme court and the high courts.vacancies to come up within the next 6 months should also be intimated to the commission in advance.

(6) Veto power of members: the NJAC shall not recommend a person for appointment if any two members of the commission do not agree to such recommendation.

COMPOSITION OF NJAC

The NJAC has the chief justice of INDIA as chairperson and 2 senior most judges of the supreme court as members, apart from the Union law minister and 2 "eminent personalities",one of whom would be nominated from among the scheduled castes ,the scheduled tribes ,minorities,the other backward classes or women. The two "Eminent Personalities" would be nominated by a Committee comprising of the Prime Minister, CJI and the leader of opposition (or the leader of the largest party in the opposition).

CONCERNS OVER THIS NEW METHOD OF JUDICIAL APPOINTMENTS

(1) PERCEIVED AS INCURSIONS into JUDICIAL INDEPENDENCE. .

(2) LOGISTICAL UNCERTAINTIES  for the NJAC which is tasked with appointments to all courts of the higher judiciary.

(3) The constitutionality of the Act are already being challenged in very many petitions. One of the issues mentioned in these petitions was that the constitutional amendments were taken up with the act but those should have been passed before the act. This ridicules the whole parliamentary process of legislating.

(4) The Power of Veto can be detrimental as rest of the members can just every decision of the three senior most judges of the Supreme Court.

(5) The framing of rules and regulations is going to be a challenging process and can delay the process of appointments.

ANALYSIS

The literal interpretation of the Constitution via. Article 124 and Article 217 would tell you that the Constitution provides that the executive would be the appointing authority with the consultation from the respective sections of the judiciary.

This system functioned fine till 1993 when the Judiciary interpreted it in a different way and took over the power of appointments and hence started the collegium system of appointed which continued till recently when NJAC came to the picture.

For all these years, many cases came to the surface where appointments were made with a maliced intention and since only judges were involved, nothing could be done about it. Gradually the need  for executive to step up was building.

The truth is that even the author of the 1993 judgement admitted that the collegium system was not working efficiently. And the fact that the bills passed smoothly through the Rajya Sabha, meant that it had the support of all political fraternity.

Now, in the NJAC, there will be three most senior judges of the SC. Other than than, in the selection process of the two eminent personalities, the CJI is part of the committee again. So saying that the role of judiciary is being diluted does not hold much water.

It is worth noting that in the US, judge selection is entirely a political process (existing judges have no say) and in Britain (for England and Wales), the 15-member Judicial Appointments Commission has 15 members, among whom only five are judges. The chairman of the JAC is a lay person, and not a judge.

Nitty GrittyMeanwhile Article 124A and 124B establish and give to the NJAC constitutional status, the newly inserted article 124C ,the NJAC act ,vests both central government as well as the commission itself with the rule making power to further define in manner in which appointments are to be made.

There is overlapping in rule making power between Union Govt. and NJAC. The rule making power of the central government is rooted in section 11 ,which provides for the power to fix the remuneration and other service conditions for the members of NJAC.

On the other hand ,the rule making power of NJAC itself is rooted in section 12 and empowers the commission for prescribe regulations for the criteria to be considered for judicial appointments,the criteria for consulting members of the bar for such appointments and other important substantive and procedural questions.

To sum up..
There might be some issues with NJAC especially the provision to veto. But we need to understand the fact that as things evolve, we gradually come to know about the flaws and its there where our work of rectifying begins. One cannot question the fact that the core idea of checks and balances is more facilitated in this proposed system rather than the one sided collegium system. As we go forward, whatever be the issues with NJAC, the competent Parliament would surely show the right way. But let's not stall the appointment just for the stake of stalling them.

(In association with His majesty Shri Shri Yogesh Unde)