National Judicial Appointments Commission

The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill was introduced in conjunction with the Constitutional (121st Amendment) Bill, 2014, which establishes and provides constitutional backing to the National Judicial Appointments Commission (NJAC). The Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as

  • Chief Justice of India
  • Other Judges of the Supreme Court (SC)
  • Chief Justice and other Judges of High Courts (HC).

Both the bills have been passed and ready to become act once the President gives assent. The acts now have ended the Collegium system and replaced it with Judicial Appointments Commission wherein executive will have a say in appointment of judges of the Supreme Court and the 24 high courts.

Headquarters of NJAC

  • The headquarters of the National Judicial Appointments Commission to be in Delhi.

Creation of NJAC

NJAC will derive its existence from the amended Article 124(2) of the constitution of India. Whenever there is are vacancies in the Supreme Court or High Courts, the Central Government will make a reference to the NJAC within a time frame as follows:

  • Existing vacancies: within 30 days of act coming into force
  • Vacancy due to completion of term: Six months in advance
  • Vacancy due to death or resignation: within 30 days

Thereafter, the NJAC will make recommendations to the President for appointments of SC and HC judges.

Composition of NJAC

The 99th amendment of the Constitution inserts a new Article 124A, which provides for composition of the NJAC. According to this, NJAC would consist of:

  • Chief Justice of India (Chairperson)
  • Two senior most Supreme Court Judges
  • The Union Minister of Law and Justice
  • Two eminent persons (to be nominated by a committee consisting of the Chief Justice of  India, Prime Minster of India and the Leader  of Opposition in the Lok Sabha)

Of the two eminent persons, one person would be from the SC/ST/OBC/minority communities or be a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Functions of the NJAC

  • According to a new article 124B, the functions of the NJAC will be as follows:
  • Recommending persons for appointment as HC and SC judges, including chief justice in each case.
  • Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court
  • Ensuring that the persons recommended are of ability and integrity.
  • The article 124C empowers the parliament of India to pass a law to regulate the procedure of amendments and empower the NJAC to lay down procedures for its functioning. Using this power, the Parliament passed the NJAC act 2014.

Procedure for Selection of the Chief Justice of Supreme Court

  • The act mandates the NJAC to recommend the name of senior most judge of the Supreme Court for appointment as Chief Justice of India. Provided, he must be considered fit to hold the office.
    Procedure for Selection of the other judges of Supreme Court
  • NJAC shall recommend names of persons on the basis of their ability, merit and other  criteria specified in the regulations.

Procedure for Selection Chief Justices of HCs:
The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other HC Judges

In case of appointment of a regular Judge of a High Court, the commission will also seek views in written from:

  • Governor of the state
  • Chief Minister of the state
  • Chief Justice of High Court
  • Veto Power of NJAC members

The members of NJAC have veto power in selection of other judges of SC and HC. The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Power of President to require reconsideration

The act empowers the president to reconsider the recommendations made by it. If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.

Current Position

The Constitution (99th Amendment) Act and the National Judicial Appointment Commission Act having been swiftly passed by both Houses of Parliament, it is only a matter of time before the formalities conclude and the Collegium system comes to an end. Questions are being raged about efficacy of the system and its impacts on judicial independence. We have still to see if enactment of this law is challenged in court and how court would take the issue. However, it is a fact that legitimacy, transparency and accountability of the judiciary, and its relationship with executive are significant. The current system is basically a system of “self-nomination”. It has rewarded individuals with kinship or other ties to members of the judiciary. There is no doubt that this system needs to be changed and replaced. But still, rather than putting in place a transparent system, the recently passed act shows the implicit intentions of the executive to curb the independence of judiciary.

We note that in UK, the judicial commissions invite an “expression of interest” from members of the Bar via public advertisements for appointment as judges in the highest judiciary. In US, the president’s nominees go through confirmation hearings in the Senate and are subjected to public scrutiny in relation to their professional lives and political views. The processes in both these countries have led to more transparency in judicial appointments, and have widened the pool of eligible candidates for appointment to these high offices. In India, the NJAC recommendations is still going to be a behind the door phenomenon and the appointment process is still vulnerable to manipulation by elites.

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