[Solved] Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.(UPSC GS-2 Mains 2017)
The National Judicial Appointment Commission Act sought to replace the collegium system for appointment of higher judges and give civil society and executive to have a say in their appointment.The Supreme Court strike it down as unconstitutional as it was violative of judicial independence.
- Independent judiciary is the basic feature of the constitution. According to the 2nd and 3rd judge cases, in appointing the judges of higher judiciary primacy is given to judiciary.
- The NJAC(National Judicial Appointments Commission ) Act, 2014 involves executive along with the judiciary in such appointments. So supreme court felt that the autonomy given to the judiciary was under threat, so it quashed the NJAC act.
- Judiciary don’t want to allow any body into its sphere to maintain the integrity and transparency of the institution, but the question arises here is, are they maintaining that impartially ?, most of the people opinion that judicial proceedings are opaque and nepotism is rising in appointments.
- Past experiences shows that post retirements posts became a regular phenomenon and giving opportunity to limited number of people in such appointments is also a concern.
- So executive thought to bring a mix of both herself and judiciary in appointments. But to protect the constitution and its values, protecting the rights of people against the tyranny of executive and legislature we need an independent judiciary.
- But on the name of protecting the institution if it is not accountable to any one is like an another type of despotism. Even after quashing NJAC if judiciary able to correct above issues then we can balance both the constitutional values and public opinion.
The Supreme Court had declared the National Judicial Appointments Commission (NJAC) Act “unconstitutional and void”.
NJAC Act: The National Judicial Appointments Commission was a proposed body that sought to give politicians and civil society the final decision in the appointment and transfer of judges to the higher judiciary in India.
The commission was established by the 99th constitutional amendment of India in 2014.
- The procedure of appointment of judges can not be shared with the political-executive.
- Only an independent body, isolated from any influence of other organs of governance, can safeguard the rights of the citizens.
Collegium System: It is a system through which the appointment, promotion, transfer of judges, and the lawyers of the Supreme court and High court are decided.
The forum consists of the Chief Justice of India and four senior-most judges of SC.
Further developments: The apex court decided to bring more transparency to the collegium system by focusing on four parameters i.e. the possibilities, eligibility, proper mechanism to deal with complaints against judges, discussion on the idea of the separate secretariat.
The court held that the primacy of judiciary in the appointment of judges was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure by giving executive and civil society a say in these appointments.
However this judgement faced criticism based on following arguments-
- The verdict upheld an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
- According to critics, the judgement failed to adequately answer the fundamental question at the root of the controversy, i.e. how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure. Whereas the Constitution accords to the President the power to appoint judges with compulsorily consulting with certain persons.
- Critics say that the Supreme Court, in the second judges’ case, 1993, wrongly interpreted the word ‘consultation’ used in Articles 124 and 217, to mean concurrence. The court then held that the executive was bound by the advice of the CJI in making appointments to the higher judiciary.
- Even the Supreme Court has admitted in the same NJAC judgement that all is not well within the opaque collegium system of “ judges appointing judges” and called for further discussion on reform process of collegium system.
- The Constitution envisages and puts a system in place to ensure the balance of power involving the executive, the legislature and the judiciary but not at the cost of opaqueness in appointment process. With evident loopholes in the collegium system, time has come for a review of the verdict by a larger bench.
Pros of the decision:
• It is in tune with the doctrine of Separation of Powers.
• The judicial independence is the part of the basic structure of the Constitution and should not be
• It would lead to interference of executive in appointment of judges leading to biasness in judiciary.
• It led to the violation of Article 124 and 217 concerning the appointment of judges in Supreme Court and High Court.
Cons of the decision are:
• The collegium system is opaque in its functioning and is accused to be biased and full of nepotism.
• NJAC act would have led to more transparency and accountability in judiciary.
• It aimed to implement the doctrine of checks and balances.
• The huge number of vacancies is also a shortcoming of collegium system. E.g.- 469 vacancies in SC
and HC Recently, the SC came out with reforms in collegium system wherein the process will be digitalized under CJI Deepak Mishra. The memorandum of Procedure is also an improvement over collegium system having representation from both judiciary and govt. We need to implement these reforms expeditiously so as to decrease the 30 million pending cases in courts
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