Syllabus: GS2/ Indian Polity
In News
- The Chief Justice of India (CJI) recently stated that the Supreme Court would consider a plea seeking to revive the National Judicial Appointments Commission (NJAC) and put an end to the existing Collegium System.
What is NJAC?
- NJAC was envisaged as a constitutional body to handle appointments/transfers of judges to the higher judiciary (Supreme Court and High Courts).
- Under the 99th Constitutional Amendment Act, 2014 and the accompanying NJAC Act, 2014, new constitutional Articles (124A–124C) were inserted to establish NJAC.
- Composition of NJAC: Chief Justice of India as the ex-officio Chairperson, the two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons.
- The eminent persons were to be selected by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the Lok Sabha.
- In 2015, a five-judge bench of the Supreme Court (Fourth Judges Case) struck down the 99th Amendment and the NJAC Act by a 4:1 majority, declaring them unconstitutional.
- The Court held that giving the executive (via Law Minister) and non-judicial persons veto or decisive role in judicial appointments compromised the independence of judiciary, which is part of the “basic structure” of the Constitution.
| Aspect | Arguments Against NJAC (Favours Collegium) | Arguments For NJAC Revival (Against Collegium) |
|---|---|---|
| Judicial Independence | The NJAC compromises independence by giving the Executive influence. Judicial Primacy is essential for an impartial judiciary. | Judges appointing judges (Judicial Self-Appointment) is against democratic principles and the spirit of checks and balances. |
| Political Influence | The Law Minister and PM-nominated members introduce the risk of political bias and quid pro quo appointments. | The Executive (Government) is the largest litigant in courts; it must have a stake in who decides its cases to ensure basic scrutiny. |
| Accountability & Transparency | The Collegium is a black box operating without a constitutional basis, formal Secretariat, or published criteria. | The NJAC, with diverse members, promotes transparency and accountability to the public. The ‘Eminent Persons’ bring a non-judicial, civil society perspective. |
| Veto Power | The two-member veto power in the NJAC could effectively empower the Executive to block any name, regardless of judicial merit. | The lack of any mechanism to veto controversial judicial appointments in the Collegium leads to non-accountable decisions and allegations of nepotism. |
| Separation of Powers | True separation requires each branch to control its own composition. The Executive appoints its ministers, Legislature its Speaker—judiciary must appoint its judges. | Absolute separation is a myth. Even in established democracies, judicial appointments involve multiple branches. |
| Speed & Efficiency | The Collegium, despite delays, processes recommendations. The real bottleneck is government clearance, not judicial selection. NJAC would add more bureaucratic layers. | The Collegium’s informal, secretive consultations cause massive delays. An institutional mechanism with timelines and procedures (like NJAC) would expedite appointments. |
Present System of Appointments in Higher Judiciary (Collegium System)
- Overview:
- The existing system for appointments in India’s higher judiciary (Supreme Court and High Courts) is the Collegium System, evolved through judicial interpretations of Articles 124 and 217, rather than explicit constitutional text.
- Under Article 124(2), Supreme Court judges are appointed by the President after consultation with the Chief Justice of India (CJI) and other SC judges as needed.
- Under Article 217(1), High Court judges are appointed by the President after consultation with CJI, the High Court Chief Justice (HC CJ), and state Governor.
- The existing system for appointments in India’s higher judiciary (Supreme Court and High Courts) is the Collegium System, evolved through judicial interpretations of Articles 124 and 217, rather than explicit constitutional text.
- Evolution via Judges Cases:
- First Judges Case (1981): “Consultation” means executive primacy; CJI opinion not binding.
- Second Judges Case (1993): Overruled prior; CJI primacy in appointments, formed collegium of CJI + two senior SC judges.
- Third Judges Case (1998): Expanded SC Collegium to CJI + four senior-most SC judges; binding if reiterated after government objections.
- Appointment Process:
- Supreme Court Judges:
- SC Collegium (CJI + 4 seniors) recommends names based on merit, integrity, diversity.
- Sent to the Law Ministry; the government can object once, but must appoint if reiterated.
- The President formally appoints.
- High Court Judges:
- HC Collegium (HC CJ + 2 seniors) initiates; sends to CJI/SC Collegium for approval.
- Same government scrutiny; President appoints after Governor input.
- Supreme Court Judges:
Source: TH
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