Collegium System v. NJAC

“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench

Collegium System for Appointment and Transfer of Judges:

The Collegium system is a system wherein the judges are appointed and transferred after consultation with the Chief Justice of India and a forum of four senior-most judges. The Indian Constitution does not provide for this system. It was evolved through the Supreme Court of India in the Three Judges Case.

The First Judges Case:

The first judge case in 1981 wherein the Supreme Court decided that the President could refuse the judge’s name recommended by the CJI, on sensible grounds. This gave more power to the executive.

The Second Judges Case:

The previous decision of the Supreme Court was overturned in the Supreme Court Advocates on Record Association v. Union of India in 1993, where in Justice J.S.Verma held that CJI must be given primary role in appointment of judges. It was with this judgement that the collegium system of introduced.

The Third Judges Case:

In the 1998 case, the Supreme Court came up with nine guidelines as to how the collegium system should work and fixated the supremacy of the judiciary over the executive in selection and transfer of judges.
Moreover, the Supreme Court in this case held that the CJI must agree to all judicial appointments made under a concept known as ‘concurrence.’ This system has been criticized as being ‘opaque and secretive.

The three faults pointed out by Justice Lodha in the collegium system are:

(i) the lack of transparency
(ii) lack of an expert body like the standing committee and
(iii) executive’s indifferent role in the participatory process.

Further, the collegium system was criticized for giving exclusive power to the judiciary in addition to the 2009 judgement given by the Supreme Court of India in the Veeraswami Case, in which it was held that no judge of the Supreme Court or the High Courts can be subjected to investigation for any offence of corruption, unless there is a prior permission of CJI. This has prevented any investigation from being carried out against any sitting judge.

National Judicial Appointments Commission:

Therefore, the National Judicial Appointments Commission was set up under Article 124 and 217 of the Indian Constitution for the appointment of judges of the higher judiciary. Article 124 A, B and C were added to the Constitution with the NJAC amendment. (99th Constitutional Amendment). Article 124 A and B defined NJAC, its members and their duties and Article 124 C empowered the Parliament to make laws in the future to regulate the procedure of appointment of judges. The National Judicial Appointments Commission, a constitutional body was proposed to replace the current collegium system under which judges are appointed.

This system consisted of: (i) the Chief Justice of India, (ii) two senior most judges, (iii) law and justice minister and (iv) two eminent persons selected by a committee consisting of CJI, the Prime Minister and leader of the opposition.

For NJAC:

NJAC was preferred by the Parliament as it affirms the separation of power guaranteed by the basic structure of the Constitution as the CJI has an important role to play. It was brought in through an amendment that was passed by both houses of parliament after thorough discussion. It also keeps a check and balance on the appointment system rather than just giving judiciary exclusivity over the appointment and transfer of judges.

Against NJAC:

NJAC was criticized for Article 124 C through which the legislature can change the appointment process through an ordinary law making process violating the theory of separation of powers. Also ‘eminent persons’ under article 124 A was not clearly defined leaving the selection process vague. The eminent person would not necessarily be able to determine the capability of a judge also in case he has vested interest, it could lead to executive supremacy over the judiciary.

Therefore, there was rife speculation about the fate of NJAC and the judicial and political world was divided on whether we should continue with the collegium system or have NJAC. There were unrelenting debates on what the Apex Court would decide. Everyone knew that the court could strike down the amendment just as it could uphold it. So, people waited with bated breath for the judgement.

Supreme Court Judgement Striking down NJAC:

On October 15, 2015, a constitutional bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. It struck down the 99th Amendment as well. There was a sharp divide in the opinion of the people after the judgement was passed.

The Finance Minister, Arun Jaitley opposed the collegium system strongly stating that the system has several faults. He pointed out that while the judicial independence is necessary, its credibility is more important. He compared the collegium system to the Gymkhana club where members appoint the future members. The executive only has a de-facto role where they have to follow what the judiciary says and this is not healthy for any system.

The judgement was also criticized for having compromised with the basic structure of the Constitution as it guarantees sovereignty of the Indian Republic and that the judgment has hindered the power of the Parliament which represents the will of the sovereign.

Justice Lodha however, supported the judgement even though he accepted that there were faults in it. Senior Advocate, Rajeev Shavan said that he is apprised of the appointments made by former Law Ministers, P. Shiv Shankar and H.R.Bhardwaj who dominated the judiciary and the appointments of judges.

Conclusion:

I am of the opinion that the Supreme Court ruling striking down NJAC is a boon. We need a strong and independent judiciary considering they hear cases like 2G spectrum allocation, coal block allocation involving politicians. Parliament is sovereign but it need not also have a role in the appointment of judges. Collegium system surely has its own set of faults but I believe that NJAC was not an answer to it. The object to having a refined system of appointment and transfer of judges has not been achieved yet. We need to have open and truthful debates on this and make the necessary amendments in the collegium system in order to consolidate the best of both the collegium system and the NJAC.

Picture Courtesy: Wikimedia