By Sonal Srivastava, Amity Law School, Lucknow.

The Supreme Court on 16th October, 2015 unanimously declared the National Judicial Appointments Commission as unconstitutional and ordered the revival of the Supreme Court scripted two decade old ‘judges selecting judges’ collegium system. However, Supreme Court agreed that the present collegium system needs reforms and asked for suggestions from the government as well as eminent jurists and lawyers.

HISTORY OF NJAC

The history of NJAC relates back to the year 2002, when Justice Venkata Chaliah Committee set up by NDA-1 in its report suggested a National Judicial Commission to be set up for the appointment of judges. Then in August 2014, Government of India passed the NJAC Act through Constitutional Amendment and on December 31, 2014, the Act got the assent of Pranab Mukherjee, the President of India. On April 13, 2015, when the Act was notified, the Supreme Court Advocates on Record Association and seven others filed a series of petitions in the Supreme Court, challenging the validity of the act and claimed that the act infringed independence of the Judiciary.

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On October 16, 2015, a five judges bench of Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, with a majority of 4:1, declared NJAC Act as unconstitutional and ordered for revival of two decade old “judges selecting judges”,collegium system.

The collegium system is in effect since 1993 after the three landmark cases of 1. SP Gupta v Union of India (First Judges Case) 2. Supreme Court Advocates on Record Association v. Union of India (Second Judges Case) and 3. Special Reference Case (Third Judges Case). The bench in majority in the above mentioned last case held that in regard to appointment of judges to Supreme Court under Article 124 (2), the Chief Justice of India should consult a “collegium of four senior most Judges of the Supreme Court and if the two judges give adverse opinion then the CJI should not send the recommendation to the government.”

CONSTITUTION OF TWO BODIES

COLLEGIUM SYSTEM-

Collegium system consists of Chief Justice of India and four senior most Supreme Court judges who recommend appointment and transfer of judges and this system is in effect since 1993 after the three landmark decisions mentioned earlier. In the First Judges case, the Executive was given primacy over the Judiciary in judicial appointments for the next 12 years by the Supreme Court. In the Second Judges Case, the bench in majority stated, “The role of the CJI is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter”. In the Third Judges Case, the Supreme Court laid down that the CJIs should consult with a plurality of four senior-most Supreme Court judges to form its opinion on judicial appointments and transfers.

NJAC-

It was to consist of six people

  1. Chief Justice of India
  2. Two senior most Supreme Court judges.
  3. Law Minister
  4. Two ‘eminent person’.

Eminent persons had to be nominated for a term of three years by Chief Justice of India, Prime Minister and leader of opposition (Lok Sabha).

VIEW OF COURT ON NJAC

A few notable points given by the Supreme Court in support of its decision were-

  • The Supreme Court said that in the matter of the Judges appointment to higher judiciary or their transfer, the primacy in the decision making inevitably rests with CJI.
  • The court was of the view that the present Act would certainly violate the basic structure of the Indian Constitution.
  • The functioning of the collegium system could not be as bad as it is being shown.
  • The court finding it difficult to introduce two eminent person by the parliament stated, “The absurdity of including two eminent persons on the NJAC can perhaps be appreciated if one were to visualize the participation of such lay persons in the selection of the Comptroller and Auditor General, the chairman and members of the Finance Commission, the chairman and members of the Union Public Service Commission, the chief election commissioner and the election commissioners and the like. The position would be disastrous. In our considered view, it is imprudent to ape a system prevalent in an advanced country, with an evolved civil society,”
  • Justice Khehar in his 440 pages long judgement opined that for the judicial scrutiny of the constitutional validity of the law, it was inconsequential whether it was passed by the Parliament with a wafer thin majority, brute majority or unanimity. According to him, inclusion of law minister and two eminent persons in the NJAC with any two persons empowered to veto a proposal mooted by the CJI and two senior most judges breached the primary mandate of the Constitution to give primacy to the CJI in the appointment of judges and was thus violative of the basic structure of the Indian Constitution.
  • “The participation of Law Minister in NJAC would have the inevitable effect of undermining the independence of the judiciary, even where such a plea is repulsed. Therefore, the role assigned to the political-executive can at best be limited to a collaborative participation, excluding any role in the final determination. Therefore, merely the participation of the Union minister in charge of law and justice in the final process of selection, as an ex-officio member of the NJAC, would render the amended provision of Article 124A(1)(c) as ultra vires the Constitution, as it impinges on the principles of ‘independence of the judiciary’ and ‘separation of powers’,” the court observed.

VIEW OF POLITICIANS AND LAWYERS ON THE DECISION

The judgement has attracted  criticism and varied opinions. A few of them are

  • Ravi Shankar Prasad of BJP said that while holding the dearly principle of independence of judiciary, the parliamentary sovereignty has received a setback.
  • Law Minister Sadanand Gowda expressed his surprise over the decision stating that the bill had received a 100% nod from both Rajya and Lok Sabha.
  • Congress leader Randeep Surjewala stated that the decision reflects the lack of confidence of judiciary in the present government which has eroded the institutional autonomy and Constitutional safeguards.
  • While senior lawyer Ram Jethmalani hailed the decision as historic day of democracy, Attorney General Mukul Rohatagi called it a flawed judgement, ignoring the unanimous will of the Parliament, half the state legislatures and the will of the people for transparency in judicial appointments.

GROUNDS OF CRITICISMS OF THE TWO SYSTEMS

COLLEGIUM SYSTEM-

The collegium system was criticized by the Centre on the grounds that it created: an ‘imperium in imperio’ that is (an empire within an empire) within Supreme Court; give and take culture and the politicians and actors got easy relief from the court while the commoners had to suffer.  According to critics, the collegium system is a close door system which lacks transparency.

“Reform that you may preserve” was the parting remark of Justice Chelameswar who was the only dissenting judge in the five member Constitutional Bench that declared NJAC as unconstitutional. Justice Chelameswar expressed his concern for the lack of transparency in the collegium system and observed “Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”

NJAC

The NJAC was criticized by the Supreme Court on the grounds that the interference of executive in judicial appointments would be an impediment to the independence of Judiciary and that it violates the principle of separation of powers, which is the basic structure of the Indian Constitution.

CONCLUSION

To conclude, the clash between the two important pillars of democracy would certainly shake the structure of democracy. The court itself was of the view that the collegium system is inapt and it certainly needs reform.

I humbly put forth a few points in this regard that the reform should be of such a nature that the independence of judiciary is not hindered and at the same time, the goals of transparency in judicial appointments are also achieved.

It is acceptable that the independence of judiciary is a must for fair dispense of justice but with all due respect, it needs to be accepted that an unfair system cannot impart a fair judgement and therefore the need of the hour is that the reform should bring in principles of meritocracy, transparency, seniority, etc so that one of the most important pillars of democracy is not only independent but also competent and fair in its dealings.

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