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Context

The Chief Justice of India (CJI) stated that the Supreme Court would consider a plea seeking the revival of the National Judicial Appointments Commission (NJAC).

What is National Judicial Appointments Commission (NJAC)?

It was a proposed constitutional body aimed at reforming the process of appointing and transferring judges to the Supreme Court and High Courts.

It was established by the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014.

It aims to replace the existing Collegium System, make judicial appointments more transparent, accountable, and inclusive by involving both judicial and executive members.

What is the Collegium System?

It is the mechanism by which judges are appointed by fellow judges. It is not mandated by the Constitution but evolved through three key Supreme Court judgments, collectively known as the "Three Judges Cases."

First Judges Case (1981): The Court ruled that the executive had primacy in judicial appointments and the Chief Justice of India's (CJI) recommendation was not binding on the President.

Second Judges Case (1993): Overruling its earlier verdict, the Court established the primacy of the judiciary, stating that "consultation" meant "concurrence." This verdict gave birth to the Collegium system.

Third Judges Case (1998): The Court expanded the Collegium to a five-member body for Supreme Court appointments (CJI + four senior-most judges) and a three-member body for High Courts (Chief Justice + two senior-most judges).

Criticisms of the Collegium System

Lack of Transparency: The system operates opaquely, with no formal criteria for selection or publicly available records of deliberations.

Allegations of Nepotism: The closed-door process has led to accusations of favouritism and the "uncle-judge syndrome," where meritorious candidates are overlooked in favour of those with familial or personal connections.

Accountability Deficit: As a self-appointing body, the Collegium lacks accountability to any other branch of the state, creating a system of unchecked power.

Exclusionary Nature: It excludes the executive and civil society, which are key stakeholders in the justice system.

National Judicial Appointments Commission (NJAC) Act 2014

As a direct response to the Collegium's shortcomings, Parliament passed the Constitution (99th Amendment) Act, 2014, and the NJAC Act, 2014. 

The NJAC was designed as a six-member commission with representation from the judiciary, executive, and civil society:

Functions and powers of the NJAC 

• Recommending Appointments:

• Chief Justice of India.
• Judges of the Supreme Court.
• Chief Justices of High Courts.
• Other Judges of High Courts.

• Recommending Transfers: Chief Justices and other Judges of High Courts from one High Court to another.

• Ensuring Criteria: Ensuring that persons recommended possess ability, merit, and other criteria specified in regulations.
• Veto Power: Any two members of the NJAC could veto a recommendation, effectively requiring a "super-majority" for any appointment to proceed.

• Selection Procedure for High Court Judges:

• The Chief Justice of the concerned High Court would make nominations or forward a list of names to the NJAC.
• The Chief Justice of the High Court, in either case, would consult two senior-most judges of that High Court and other judges and advocates as specified in the regulations.
• The Commission would also elicit the views of the Governor and Chief Minister of the state before making recommendations.

Why the Supreme Court Struck Down the NJAC?

In 2015, in the Supreme Court Advocates-on-Record Association vs Union of India case (also known as the Fourth Judges Case), a five-judge Constitution Bench struck down both the 99th Amendment and the NJAC Act by a 4:1 majority. The key reasons were:

• Violation of the Basic Structure: The Court ruled that judicial independence is a part of the Constitution's basic structure, requiring the judiciary's primacy in its own appointments.
• Executive Interference: The presence of the Union Law Minister on the commission was seen as direct executive overreach that could compromise the judiciary's role as a check on the government.
• Veto Power of Non-Judicial Members: The Court rejected the NJAC's veto provision, as it allowed the Law Minister and an eminent person to collectively stall appointments, thereby undermining judicial primacy.

The Court acknowledged the Collegium's flaws and directed the government to draft a revised Memorandum of Procedure (MoP) in consultation with the CJI to enhance transparency. 

Way Forward 

Reform the Collegium from Within

A revised MoP should include clear eligibility criteria, establish permanent secretariats in courts to vet candidates, and set firm timelines for both the judiciary and the government to act on recommendations.

Consider a Modified NJAC

A revised NJAC model ensuring judicial primacy could be explored. The National Commission to Review the Working of the Constitution (2002), led by Justice M.N. Venkatachaliah, suggested a commission with a senior judge majority, maintaining judicial independence while incorporating external input.

Learn from Global Practices

The United Kingdom and South Africa have independent Judicial Appointment Commissions (JACs) with balanced judicial, professional, and lay members. Operating transparently and merit-based, these models offer valuable lessons for India.

Conclusion

The future of the judicial appointment process requires moving beyond the Collegium-NJAC dichotomy to establish a balanced, credible, and efficient institutional mechanism that harmonizes judicial independence with democratic accountability and transparency, thereby strengthening public trust and the rule of law.

Source: THE HINDU