A Scathing Attack On Court

Context

• India’s Vice President recently stated that the Supreme Court’s 2015 decision, which invalidated the NJAC and the 99th Constitutional Amendment, 2014, severely harmed parliamentary sovereignty and ignored the will of the people.
• Previously, Union Law Minister said that the Collegium system of appointing judges was “opaque,” “unaccountable,” and “incompatible” with the Constitution.
• The article emphasises how disturbing these attacks on the Collegium system and the SC verdict are, as well as the National Judicial Appointments Commission’s shortcomings (NJAC).

Relevance

GS Paper 2: Separation of powers between various organs dispute redressal mechanisms and institutions.

Mains Question

“Recently, there has been a growing voice in support of reintroducing the NJAC Bill.” Examine the NJAC Act 2014 in light of this statement. (150 Words)

The Constitution (99th Amendment) Act of 2014

• It purchased the following changes to replace the collegium system and introduced three primary Articles, which are as follows:
  • Article 124A: It established the National Judicial Appointments Commission (NJAC) to replace the collegium system.
  • Article 124B: It gave the NJAC the authority to make appointments.
  • Article 124C: It gave Parliament the authority to regulate the NJAC’s operations.
• The NJAC Act was passed unanimously by the Parliament in 2014, replacing the collegium system with the NJAC.

Appointment procedure

• •: The NJAC was supposed to recommend the Chief Justice of India and Chief Justices of the High Courts based on seniority.
  • The SC and HC judges were to be chosen based on their ability, merit, and other factors.
    • NJAC Panel: It was a six-member panel chaired by the CJI and comprised of two of the Supreme Court’s most senior judges.
  • The other three were the Union Law Minister and two “eminent persons.” One of the eminent members had to be nominated by someone from the SC, ST, OBC, or be a woman.
  • A recommendation can be vetoed by any two members of the panel.

Why was NJAC challenged?

• In 2015, the Supreme Court Advocates on Record Association (SCAORA) filed a petition against NJAC, claiming that it devalued the judiciary’s collective opinion by allowing its recommendation to be vetoed.
  • The petitioner also claimed that NJAC “severely” harmed the Constitution’s basic structure (judicial independence).
  • 4th Judge Case 2015: The NJAC and the 99th Amendment were overturned by the Supreme Court on the grounds of jeopardising judicial independence.
    • This resulted in the restoration of the collegium system, in which appointments and transfers of judges are decided by a forum comprised of the CJI and the Supreme Court’s four senior-most judges.

NJAC-related articles and content

• No casting vote for CJI: The NJAC had an even number of members under Article 124A, but the Chairperson – the CJI – had no casting vote. Because there was no clarity on a tie, a deadlock was obvious.
  • Eminent persons may lack expertise: Unlike other Central Acts, which require “eminent persons” appointed as members of a committee to have expertise in the subject matter covered by the statute, the NJAC does not.
    • It implied that one-third of the NJAC could be constitutionally unaware of how the SC or the HCs operate and still decide the fate of our higher judiciary.
  • Veto provision: Under the NJAC Act, the NJAC could not make a recommendation if two of the six members disagreed. This could have caused havoc in the appointment process, giving the executive complete control of the judiciary.
  • An unusual selection procedure for HC judges: The Chief Justice and two senior-most judges from each HC were required to nominate individuals to the NJAC for appointment as HC judges.
    • The NJAC could also nominate individuals for appointment as HC Judges at the same time. The split could have occurred if the two sets of nominees were different.
    • In addition, the NJAC was required to “elicit in writing” the Governor’s and Chief Minister’s views on the appointment of HC judges. If these two held opposing viewpoints, it was unclear who would win.
  • NJAC determining suitability criteria: The 99th amendment gave NJAC the authority to draught regulations establishing suitability criteria and the procedure for appointing judges to the SC and HCs.
    • These regulations had to be tabled before both Houses of Parliament, which had the authority to nullify or modify them, making the appointment process inefficient.

The Supreme Court’s response to recent criticism of the Collegium system

• Under the Constitutional scheme, the power of Parliament to enact a law is subject to scrutiny by the courts, which serve as the “final arbiter” of the law.
• The Collegium’s average clearance rate is around 50%, indicating that the government’s opinion is taken into account when appointing judges.

The way forward

• NJAC reform: The NJAC should be amended to ensure that the judiciary maintains independence in its decisions and reintroduced with judges constituting a clear majority in the Commission.
  • Detailed guidebook: The SC should issue a written manual that should be followed during appointments.
  • Collegium Minutes: The Collegium’s deliberations could be videotaped and archived, and all meetings should be open to the public to ensure transparency and a rule-based process.
  • Specified criteria, such as regional representation, seniority, gender, and so on, to elevate judges and advocates to the SC rather than relying solely on the Collegium’s unanimity, could help avoid future disagreements.
  • UK Model: A special selection commission selects the various applicants for the position of judge, based on the qualifications and procedure prescribed.
    • The chosen nominees are reported to the Lord Chancellor, who recommends a name to the Prime Minister, who then advises the King on the appointment.
  • US Model: Under the US Constitution, the President has the authority to appoint a Supreme Court nominee, and the Senate has the responsibility to confirm a nominee in order to enforce the concept of checks and balances.

Conclusion

• India must restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic (the Supreme Court stated in its 2015 verdict that “all is not well with the Collegium”).

• It is time to consider establishing a permanent, independent organisation to institutionalise the process while ensuring judicial primacy, diversity, professional competence, and integrity.