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NJAC vs collegium: The arguments and counter-arguments

Business Standard compares the two system of appointment of judges

Krishna PS  |  New Delhi 

The Supreme Court on Friday struck down Judicial Appointments Council (NJAC) as unconstitutional. The Democratic Alliance government at the Centre had passed the NJAC Bill to remove the two-decade-old collegium system, where a group of judges decided who would be judges in the Supreme Court (SC) and high courts.

Here are a few things to know about the whole issue:

What is a collegium system?


The collegium system is one where a group of judges select judges for high courts and the Supreme Court. This system had come into force after two Supreme Court judgments in the 1990s. A body of senior apex court judges, headed by the Chief Justice of India (CJI), had at the time selected persons and recommended their names for appointment as judges.

What is NJAC?

NJAC, a government-proposed body comprising six members — CJI, two seniormost judges of the Supreme Court, Union minister of law & justice, and two eminent persons nominated by CJI or the prime minister or the leader of the Opposition in the Lok Sabha. The secretariat of NJAC was proposed to be with the law ministry.

What is good about the collegium system?

A simplistic understanding might make the collegium system look rather opaque, especially because only judiciary has the power to select future judges. However, this is also a way to make judiciary independent of politics. Having been kept outside of the legislature and executive, the system is believed to keep selection of future judges free from outside interference. It upholds the seniority of candidates and is supposed to abide by the principles of separation of powers in the Constitution. With the government’s involvement, many fear the judiciary might have to compromise on its independence.

What are the arguments against collegium?

According to a PTI report, the Centre has termed the system of judges appointing judges “illegal”.

A FirstPost report says the Collegium system was not proposed by Indian Constitution; it has evolved to what it is today through two Supreme Court judgments. Before the collegium system came into being, the process for selection of judges was done as mentioned in Constitution.

Article 124 of the Constitution says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the chief Justice of India shall always be consulted.”

Article 217 says: “Every judge of a high court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the chief Justice, the chief Justice of the high court….”.

That is, according to the Constitution, the executive is empowered to appoint judges in consultation with the judiciary. But in 1993, the Supreme Court created a collegium and empowered judges to appoint judges; the government could raise objections if it wanted, but the collegium could still go ahead, the report says.

“20 state assemblies had ratified it (NJAC)... the principal author of the 1993 Supreme Court judgment, which led to the collegium system, (late) Justice J S Verma had also suggested a serious rethink on the collegium system and so had Justice V R Krishna Iyer,” a Times of India report on Friday quoted Telecom Minister Ravi Shankar Prasad as saying.

What is good about NJAC?

In NJAC, there are three members outside of the judiciary and three members from judiciary. Also, the government and the Opposition could nominate members to the council which made the council diverse.

In NJAC, members have veto power. If two members veto a nomination or decision, the matter is dropped, says the FirstPost report.

Image via Shutterstock
Image via Shutterstock
In the petition filed by advocate Prashant Bhushan and the Centre for Public Interest Litigation against the NJAC Act, it was said that the collegium system must be scrapped as well, and a full-time judicial appointments commission, independent of the government and the judiciary, should be constituted to select judges. This body could work in a transparent and scientific manner by laying down the criteria for selection, advertising of vacancies and evaluation of applicants/nominees on a discernable basis on the criteria laid down.

Arguments against NJAC

The Judicial Appointments Commission Act was “against the basic features of our Constitution”, though the collegium system is not entirely flawless, a Zee News report said, quoting top lawyers and legal experts. The Constitutional validity of NJAC was challenged by several bodies and groups on the ground that it might dilute the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments, said Prashant Bhushan in an article for Livelaw. (http://www.livelaw.in/njac-judgment-is-welcome-especially-at-a-time-when-the-government-is-seeking-to-control-various-independent-accountability-institutionsprashant-bhushan/)

One of the main concerns regarding NJAC was the involvement of government in the council. The main ground on which the Supreme Court made its judgment on Friday was that by giving the government a substantial say in the appointment of judges, NJAC might compromise the independence of the judiciary.

First Published: Fri, October 16 2015. 22:06 IST
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