National Judicial Appointment Commission (NJAC) – UPSC GS2

National Judicial Appointments Commission (NJAC) :
  • The National Judicial Appointments Commission (NJAC) was a constitutional body proposed to replace the present Collegium system of appointing judges.
  • Structure: It consist of six people:
    • Chief Justice of India
    • Two most senior judges of the Supreme Court
    • Law Minister
    • Two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
  • The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
  • The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment.
  • A demand for introducing National Judicial Appointments Commission has been resurfaced in Lok Sabha.
Models in other countries:
  • In the United States, the Executive (the President) has the power to appoint but “by and with the advice and consent” of the Legislature (the Senate).
  • In both Australia and Canada, it is the Governor General (read: the Prime Minister) who appoints the judges. Serving judges, including the Chief Justice, have no say in the appointments.
  • In no country of the world do serving judges exclusively select and appoint judges.
Flaw in old NJAC Act:
  1. non-definition of “eminent persons”,
  2. veto for any two members, and
  3. possibility of a caucus of non-judge members rendered the law defective.
  4. At the same time, the argument that the presence of the Law Minister or two eminent persons in the NJAC vitiated the system is hopelessly flawed
What are the arguments against the collegium system?
Experts point to systemic errors such as:
  1. The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;
  2. A closed-door affair without a formal and transparent system;
  3. The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
  1. The collegium shall have exclusive authority to nominate persons for consideration for appointment as judges of the High Courts and the Supreme Court.
  2. A Judicial Appointments Commission shall review the candidates nominated by the collegium and recommend persons considered suitable for appointment to the President. The Commission shall be broad-based (like the 15-member body in the United Kingdom) and shall have judges, jurists, legal scholars and the Law Minister.
  3. A person nominated by the collegium and recommended by the Commission, and no other person, shall be appointed as a judge.
In a democracy, there is no such thing as a perfect electorate, a perfect legislature, a perfect executive or a perfect judiciary. In their imperfections, they interact and make political, economic and social progress possible.

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