SC strikes down NJAC Act and 99th CAA as unconstitutional and collegium system as it existed before, will become operative again
Models in other countries:
- Split model
- Collaborative model
- Judicial self-selection commission model
- Judicial appointments commission model
The diversity of constitutional ethos in different countries suggests that it may not be a good idea to borrow other systems for the selection of judges.
Democratic values are strengthened not only be a strong legislature but also by a strong judiciary so that a mutually respectful and independent partnership on the public’s right to justice is maintained.
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. In the Indian context, it may be conceded that the Executive should not have the exclusive authority to appoint judges. The judiciary too must have a role.
Four Fundamental premises of NJAC judgement:
- Exclusive authority of the judges is essential to protect the independence of the judiciary (corollary: participation, even minimal, of the Executive or civil society will compromise judicial independence).
- No one outside the judiciary has the wisdom to assess the ability and suitability of a person to be appointed as a judge (corollary: judges always do an outstanding job of selecting new judges).
- Thirdly, civil society cannot offer two eminent persons to participate in the selection process (corollary: once appointed, judges are evolved members of the human race that sets them apart from the rest).
- Fourthly, politicians are corrupt and unworthy (corollary: judges are incorruptible).
There is climate of Institutional Mistrust.
NJAC – Effect on Judiciary:
Proponents of the NJAC argues that the earlier collegium system of appointment of judges was afflicted by nepotism, patronage, corruption and opaque system of appointment. This created mistrust among the people and other judicial members about the credentials of the selected person, besides making the whole process opaque.
NJAC is intended to bring to required transparency and a sense of accountability in the selection and transfer of judges. The NJAC would comprise the CJI as its head, two senior most judges of the SC, Union Law minister and two ’eminent jurists'(to be selected by PM ,LOP in LS and CJI).By including the executives and the ’eminent persons’ in the selection panel it will curb the arbitrariness in the selection process.
However, the members of judiciary argue that this will be against the separation of powers principle of the Indian constitution and interference by the executives. Their power of selection could be easily vetoed by the executives
Flaw in NJAC Act:
- non-definition of “eminent persons”,
- veto for any two members, and
- possibility of a caucus of non-judge members rendered the law defective.
- 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:
- 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;
- A closed-door affair without a formal and transparent system;
- 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.
- The collegium shall have exclusive authority to nominate persons for consideration for appointment as judges of the High Courts and the Supreme Court.
- 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.
- 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.
- Article 50 – Separation of power
- 3rd Judges case – let to supremacy of judiciary in appointments and made collegium recommendation binding
In your opinion, should the judiciary retain its primacy in appointments, or should it share an equal responsibility with the executive? Also analyse how would the National Judicial Appointments Commission affect the Constitutional role of the Chief Justice of the Supreme Court. (200 Words)
Recently the Union government notified the National Judicial Appointments Commission (NJAC) law. Critically analyse objectives and functions of NJAC and their effect on structure of Indian judiciary. (200 Words)