In News:
- SC strikes down NJAC, revives collegium system of appointing judges.
- In a historic ruling that the primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution, the Supreme Court today declared unconstitutional an amendment to validate the National Judicial Appointments Commission (NJAC) Act.
- Five-judge Constitution Bench ruled with a 4:1 majority that judges’ appointments shall continue to be made by the Collegium system in which the Chief Justice of India will have “the last word”.
- The Bench underlined that the NJAC sought to interfere with the independence of the judiciary.
What is the NJAC?
- The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
How were judges appointed before (Collegium system)?
- Until the NJAC came along, Articles 124 and 217 of the Constitution dealt with the appointment of judges of the higher judiciary.
- These articles specifically said that judges would be appointed by the President of India after “consultation” with the Chief Justice of India (CJI) and other judges.
- The word “consultation” is significant because in 1993, in the so-called Second Judges case, the SC decided that the CJI must agree to all judicial appointments—a concept known as “concurrence”.
- This created the collegium system, wherein the three seniormost Supreme Court judges decided on who would be a high court or Supreme Court judge.
- The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
- The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
- The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
How and when was the NJAC established?
- The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
- Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
- It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’.
- These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
If politicians are involved, what about judicial independence?
- The judiciary representatives in the NJAC – the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it.
- Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
If the NJAC is killed by SC, what would happen to it?
- The two options are the so-called “doctrine of revival” and the “doctrine of eclipse”. Supreme Court has never decided on this before and so no one knows what will happen.
- On the one hand, if the NJAC were struck down, the doctrine of revival would re-instate the collegium system and make the whole NJAC and the 99th constitutional amendment invalid.
- On the other hand, the doctrine of eclipse would call for the Supreme Court to tinker with the process of NJAC carefully so that the current portions of the law that are unconstitutional are removed and the NJAC can then function properly.
