NJAC Act Unconstitutional declares SC-Independence of Judiciary-How the previous collegium system took shape

Contents NJAC Act Important points from the Oct, 2015 Judgment Composition of NJAC Article 124 and Article 217 Criticism of commission Independence of Judiciary as ensured by the constitution How the previous collegium system took shape Problems with the existing Collegium system of appointment of judges Replacing a failed system Arguments in favor of NJAC Arguments against NJAC Future

National Judicial Appointments Commission Act

• National Judicial Appointments Commission is governed by NJAC Act
• NJAC Act is 99th Constitution Amendment Bill to insert article 124c.
• Passed by both Lok Sabha and Rajya Sabha.
• Ratified by half of the country’s State legislatures.
• President’s assent is secured.
• Oct, 2015: SC constitutional bench deems NJAC Act unconstitutional.

Important points from the Oct, 2015 Judgment

• Justice J.S. Khehar presided the five-judge Constitution Bench.
• The Bench in a majority of 4:1 rejected the NJAC Act.
• Judiciary cannot risk being caught in a “web of indebtedness” towards the government.
• In India, the organic development of civil society, has not as yet sufficiently evolved. [people are not mature enough]
• 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.
• But interestingly, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system of judicial appointments.
• The SC also asked the country to come up with meaningful recommendations.

Composition of NJAC

1. Chief Justice of India as its ex officio chairperson,
2. the two senior-most judges of the Supreme Court following the Chief Justice,
3. the Law Minister, and
4. two ‘eminent persons’ to be nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition.

• 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 expressed fears that the executive would exercise unbridled control over judicial appointments.

Independence of Judiciary 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. [But Constitution gives these powers to executive]
• 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.”

Problems with the existing Collegium system of appointment of judges

• Lack of transparency and accountability.
• Extra-constitutional.
• Evidence of the recent past has shown, an abject failure of Collegium system.[Some judges openly criticized the credibility of a newly appointed CJI]
• Collegium system is redundant and 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

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. [Opinions vary]
• 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. [There is strong argument that The Government can influence a judge to get decision in its favor]
• Fears that the composition of the NJAC will vest an unrestrained power in the executive is not entirely true and at the same time cannot be ignored.

Arguments in favor of NJAC

• 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.
• 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.

Arguments against NJAC

• The NJAC will facilitate the executive to creep in slowly into judiciary.
• NJAC might work fine. But we cannot risk the slightest possibility of unwarranted influence on judiciary. [3 from Judiciary + 1 from Government + 2 eminent persons (nominated by 2 politicians + CJI). The influence of executive cannot be denied]
• Executive has the power to make laws regarding the appointment of judges but it should not take up any role in the selection of judges.
• [Present government which is turning out to be a puppet in the hands of fundamentalist institutions gives an extra reason to be skeptic about NJAC Act]

Future

• Collegium System is totally unconstitutional. It has to go. [SC also opined the same but didn’t use strong words like ‘unconstitutional’]
• NJAC leaves some room for manipulation of the appointment process of judges and this will definitely go against the rule of separation of powers (Without this basic structure of the constitution, India cannot be a democracy).
• An alternative system should be evolved to appoint judges without the role of executive and at the same time it should be transparent and accountable.

Model Question: 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 ‘the executive’ 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.

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