Contents
· National Judicial Appointments Commission
· Composition of NJAC
· Functions
· Article 124 and Article 217
· Criticism of commission
· Problems with the existing Collegium system of appointment of judges
· Independence of Judicary as ensured by the constitution
· How the previous Collegium system took shape
· Replacing a failed system
· Conclusion
· Breach of Judicial Independence is a threat to democracy. Comment
National Judicial Appointments Commission
· 99th Constitution Amendment Bill to insert article 124c.
· Insertion of new articles 124A, 124B and 124C. Amendments to Articles 127, 128, 217, 222, 224A, 231.(have to remember only important ones)
· Passed by both Lok Sabha and Rajya Sabha
· Ratified by half of the country’s State legislatures
· Got President’s assent in 2014
· The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015
· National Judicial Appointments Commission is governed by NJAC Act
Composition of NJAC
· Chief Justice of India as its ex officio chairperson,
· the two senior-most judges of the Supreme Court following the Chief Justice,
· the Law Minister, and
· two ‘eminent persons’ to be nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition.
Functions
· The NJAC will be responsible for making binding recommendations to the President for appointing judges to the Supreme Court and to various High Courts.
Article 124 and Article 217
· Article 124 of the Constitution provides that the President shall appoint judges to the Supreme Court after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
· And, where the appointment is of a judge other than the Chief Justice of India, the President is mandatorily required to consult the Chief Justice.
· Likewise, Article 217 provides that the President shall appoint judges to the High Courts after consultation with the Chief Justice of India, the Governor of the State, and in case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned.
Criticism of commission
· Detractors argue that, the bill violates the Constitution’s basic structure of separation of powers between various organs of the state
· Detractors also argue that the proposed laws vest excessive power in the executive, including a potential ability to veto nominations, thereby impinging on the independence of the judiciary.
· They have allayed fears that the executive would exercise unbridled control over judicial appointments.
Problems with the existing Collegium system of appointment of judges
· lack of transperancy and accountability.
· extra-constitutional.
· evidence of the recent past has shown, an abject failure.
· doesn’t encourage essential reforms in judicial system.
· In the Constitution (as originally enacted), the power to appoint judges to High Courts and the Supreme Court rests with the executive. The collegium system is not in consonance with this principle.
Independence of Judicary as ensured by the constitution
· When drafting the Constitution, the Constituent Assembly took great efforts to ensure that the judiciary was independent of any coercive political influence. To that end, it introduced a number of significant provisions in the Constitution.
For example,
· the judges of the Supreme Court and the High Courts serve not at the pleasure of the President, but until they attain a fixed age;
· salaries and allowances of the judges are charged from the Consolidated Fund of the State (which is incapable of being a subject of a vote by a Legislative Assembly);
· discussion in the State legislatures on the conduct of any judge is expressly barred;
· powers are conferred on the High Court to punish for contempt of itself; and,
· significantly, judges of the higher judiciary can be removed only through a complicated process of impeachment by Parliament.
· given wide powers of judicial review including the power to strike down laws made by Parliament,
How the previous Collegium system took shape
· First Judges Case, the Supreme Court found that the word “consultation” did not mean “concurrence,”. The Court held that the opinion of the Chief Justice in making transfers was not binding on the executive, although a departure from his or her opinion could be made in exceptional circumstances.
· Supreme Court dramatically altered the position in the Second Judges Case. In the Second Judges Case, it ruled that the word “consultation” in Articles 124 and 217 denoted “concurrence,” and that primacy in making judicial appointments is vested with the Chief Justice.
· This decision was later affirmed with certain modifications in the Third Judges Case, and it was held that the ultimate authority to make appointments to the Supreme Court lay with a collegium of judges comprising the Chief Justice and his or her four senior-most colleagues.
· Through the Second and Third Judges cases, the Supreme Court virtually appropriated unto itself the power to appoint judges. As the nature of appointments made in the last two decades has showed, the decisions exemplified a concern expressed by James Madison in the American context: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective,” he said, “may justly be pronounced the very definition of tyranny.”
Replacing a failed system
· Now, through the 99th Constitution Amendment Bill and the NJAC Bill, Parliament has merely sought to realign the process of appointments in consonance with a general principle of separation of powers
· The composition of the NJAC may not be perfect, but it is, in fact, tilted in favour of the judiciary. If any two of the three judges on the panel believe that a candidate is unsuitable for appointment, they can together veto the elevation of such a nominee.
· The Union government, on the other hand, merely has a single vote in the NJAC, and cannot, by itself, place a proscription on any appointment. It will require the additional backing of either one of the judges or one of the ‘eminent persons’ for the government to thwart any nomination.
· Any fears that the composition of the NJAC will vest an unrestrained power in the executive therefore appear unfounded
Conclusion
· No doubt Parliament will have to introduce through legislation, as part of the NJAC, suitable infrastructure including the presence of full-time staff, to aid its members to arrive at considered decisions. The failure to include such a support structure is one of the collegium’s many shortcomings. But Article 124C, introduced by the new Constitution Amendment, allows Parliament that authority.
· Needless to say, any legislation introduced by Parliament in this regard, if in violation of any provision of the Constitution or the Constitution’s basic structure, can be struck down by the courts as unconstitutional. But the argument that the 99th Constitution Amendment Bill in itself and by itself is ultra vires the Constitution for infracting the document’s basic structure is, at best, tenuous.
· Given that the originally enacted Constitution placed overriding power on the executive to make judicial appointments, it is unfathomable how the proposed system, which accords the judiciary not merely a consultative role but a determinative one, can be found to infringe the independence of the judiciary. The pre-existing provisions, which the drafters of India’s Constitution inserted to ensure judicial autonomy, continue to remain in force. It is only the process of appointments, which was arrogated by the judiciary unto itself, which has been calibrated by the proposed Constitution Amendment. This realignment is both in keeping with the original intent of the Constitution’s framers and also with the larger principle of separation of powers that pervades the document.
Breach of Judicial Independence is a threat to democracy. Comment
· ‘Breach of judicial Independence’ refers to unconstitutional interference into the affairs of the judiciary by other ‘organs of the state’ such as ‘bureaucracy’ and ‘legislature’. It is against the ‘principle of separation of powers’, which is a ‘basic structure’ of the constitution. It leads to subordination of judiciary to other organs of the state, thus adversely affecting the efficacy of the ‘justice delivery system’.
· It is the judiciary that ultimately protects common citizen from tyranny of bureaucracy and arbitrariness of the government. It is the ‘final interpreter’ of the constitution and its decision on the constitutional validity of a law made by legislature or a rule made by bureaucracy is final.
· Breach of Judicial Independence will induce impotency in judiciary and makes way for vested interest groups to be a part of it, completely damaging the justice delivery system, which would turn a democratic, potentially welfare state into a Dictatorship or a despotic state where only unlawfulness and injustice prevails. Courts turn into mere agents of vested interest groups, petty bureaucrats and politicians, and turn a blind eye on injustice caused to common man. Citizens of the state will no more be entitled to social, political or economic justice. In such a scenario, the whole democratic setup collapses and the public will take the path of anarchy to counter the despotic rule of the state.
· Thus breach of judicial independence is certainly a threat to democracy.
· (Answer needs optimization)
Justice Shah questions collegium system
· The collegium system itself “exemplifies the misalignment between the core values of judicial independence and judicial accountability.”
· Judicial Appointments Commission was a step in the right direction to free judicial appointments from “inappropriate politicisation.”
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