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National Judicial Appointments Commission

National Judicial Appointments Commission (NJAC) is a proposed body

responsible for the appointment and transfer of judges to the higher judiciaryinIndia. The Commission is established by amending theConstitution of

India through the ninety-ninth constitution amendment vide the Constitution

(Ninety-Ninth Amendment) Act, 2014 passed by theLok Sabha on 13 August

2014 and by theRajya Sabha on 14 August 2014. The NJAC replaces

thecollegium system for the appointment of judges as invoked by the Supreme

court via judicial fiat by a new system. Along with the Constitution Amendment

 Act, the National Judicial Appointments Commission Act, 2014, was also

passed by theParliament of India to regulate the functions of the National

 Judicial Appointments Commission. The NJAC Bill and the Constitutional

 Amendment Bill, was ratified by 16 of the state legislatures in India, and

subsequently assented by thePresident of India Pranab Mukherjee on 31

December 2014. The NJAC Act and the Constitutional Amendment Act came

into force from 13 April 2015.

In 2015, Chief Justice of India, H L Dattu refused to take part in the NJAC.

Currently, supreme court is looking into the pleas against the NJAC.

Constitution of the National Judicial Appointments

Commission

 A new article, Article 124A, (which provides for the composition of the NJAC)

has been inserted into the Constitution.

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Composition

 As per the amended provisions of the constitution, the Commission will consist

of the following six persons:

• Chief Justice of India (Chairperson,ex officio)

•  Two other senior judges of the Supreme Court next to the Chief Justice of

India -ex officio

•  TheUnion Minister of Law and Justice,ex-officio

•  Two eminent persons

 These (two) eminent persons will be nominated by a committee consisting of the

• Chief Justice of India,

• Prime Minister of India, and

• Leader of Opposition in the Lok Sabha or where there is no such Leader

of Opposition, then, the Leader of single largest Opposition Party in Lok

Sabha), provided that of the two eminent persons, one person would be

from theScheduled Castes or Scheduled Tribes orOBC orminority

communities or 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 Commission

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 As per the amended constitution, the functions of the Commission include the

following:

• Recommending persons for appointment as Chief Justice of India,

 Judges of the Supreme Court, Chief Justices of High Courts and other

 Judges of High Courts.

• 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, merit and other

criteria mentioned in the regulations related to the act.

Procedures to be followed by the Commission

 The National Judicial Appointments Commission Bill, 2014, has laid down the

following procedures for the selection of the Judges of the higher judiciary.

 Procedure for Selection of Supreme Court judges

Chief Justice of India

 The Commission shall recommend the senior-most judge of the Supreme Court

for appointment as Chief Justice of India. This is provided he/she is considered

fit to hold the office.However, this must be according to the knowledge one

possess rather than the age.

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Supreme Court Judges

 The Commission shall recommend names of persons on the basis of their

ability, merit and other criteria specified in the regulations.

 The Commission shall not recommend a person for appointment if any two of

its members do not agree to such recommendation.

 Procedure for Selection of High Courts judges

Chief Justices of High Courts

 The Commission shall 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 High Court Judges

 The Commission shall seek nominations from Chief Justice of the concerned

High Court for appointments of High Court Judges and then forward such

names to the Chief Justice of the concerned High Courts for his/her views. In

 both cases, the Chief Justice of the High Court shall consult two senior most

 judges of that High Court and any other judges and advocates as specified in

the regulations. The Commission shall elicit the views of the Governor and

Chief Minister of the state before making recommendations. The Commission

shall not recommend a person for appointment if any two members of the

Commission do not agree to suchrecommendation.

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Challenge to the constitutionality

 The validity of the constitutional amendment act and the NJAC Act were

challenged by certain lawyers, lawyer associations and groups before the

Supreme Court of India through Writ Petitions.[12] Earlier in August 2014,

Supreme Court had dismissed few Writ Petitions challenging the validity of

NJAC on the ground that the challenge was premature as the constitutional

amendment and the NJAC Act had not been notified then.[13] After the fresh

challenge in 2015 after the acts were notified, a three judge bench of the

Supreme Court referred the matter to aConstitution Bench.

Three Judges Cases

 TheSupreme Court of India's collegium system, which appoints judges to the

nation's constitutional courts, has its genesis in, and continued basis resting

on, three of its own judgments which are collectively known as the Three

 Judges Cases.

 The cases

Following are the three cases:

1.S. P. Gupta v. Union of India - 1981[1] (also known as the Judges' Transfer

case)

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2.Supreme Court Advocates-on Record Association vs Union of India – 1993

3.In re Special Reference 1 of 1998

Over the course of the three cases, the court evolved the principle of judicial

independence to mean that no other branch of the state - including the

legislature and the executive - would have any say in the appointment of

 judges. The court then created the collegium system, which has been in use

since the judgment in the Second Judges Case was issued in 1993. There is

no mention of the collegium either in the original Constitution of India or in

successive amendments. Although the creation of the collegium system was

 viewed as controversial by legal scholars and jurists outside India, her citizens,

and notably, Parliament and the executive, have done little to replace it. The

 Third Judges Case of 1998 is not a case but an opinion delivered by the

Supreme Court of India responding to a question of law regarding the collegium

system, raised by then President of IndiaK. R. Narayanan, in July 1998 under

his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a

public interest litigation filed by NGO Suraz India Trust that sought to

challenge the collegium system of appointment.

In July 2013, Chief Justice of IndiaP. Sathasivam spoke against any attempts

to change the collegium system.

On the 5th of September, 2013, the Rajya Sabha passed The

Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and

217(1) of the Constitution of India, 1950 and establishes the Judicial

 Appointment Commission, on whose recommendation the President would

appoint judges to the higher judiciary. The critical aspect about the new setup

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that the Government through the amendment seeks to achieve is the

composition of the judicial appointment commission, the responsibility of

 which the amendment bill lays on the hands of the Parliament to regulate by

 way of Acts, rules, regulations etc. passed through the regular legislative

process.

National Judicial Appointments Commission established

 TheLok Sabha on 13 August 2014 and theRajya Sabha on 14 August 2014

passed the National Judicial Appointments Commission Bill, 2014 to scrap the

collegium system of appointment of Judges. The President of India has given

his assent to the National Judicial Appointments Commission Bill, 2014 on 31

December 2014, after which the bill has been renamed as the National Judicial

 Appointments Commission Act, 2014.

 Judicial meaning of the word "Recommendation

In the judgement on the presidential reference, Supreme Court has dealt

elaborately, the modality of rendering recommendation by a constitutional

entity such as Supreme Court,President of India, etc, It is not at the discretion

of the person consulted to render the recommendation but internal

consultations with the peers shall be made in writing and the recommendationshall be made in accordance with the internal consultations.

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Ques – The Reson why this Collegium System has been put to question. ?

 The Collegium System…

In a meeting held last week, the Supreme Court Collegium headed by Chief

 Justice R.M. Lodha the cleared the names of two senior advocates as judges to

the Supreme Court. The two judges being nominated are the former solicitor

generals GopalSubramaniam and RohintonNariman.The move is being

considered as landmark as it comes after more that fifteen years since an SC

 judge was appointed directly from the Bar. The last lawyer appointed directly tothe Supreme Court bench was SantoshHegde in 1999. Only three other judges,

namely Justices S.M. Sikri, S. Chandra Roy and Kuldip Singh have been

appointed to the Supreme Court directly from the bar. In the wake of this

development it is important to analyze how does the appointment of judges

take place in India.

 Article 124 deals with the appointment of Supreme Court judges. It states that

the President should make the appointment after consultation with such

 judges of the High Courts and the Supreme Court, as the President may deem

necessary. The CJI is to be consulted in all appointments, except his or her

own.Contrary to the Article the practise is that the judges are appointed

through a collegium. The “Collegium” is a system under which a forum of the

Chief Justice of India and the four senior-most judges of the Supreme Court

decide appointments and transfers of judges. It has no place in the Indian

Constitution.

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 There has been a constant battle between the executive and the Judiciary for

the appointment of the judges that can be evinced from the following 3

cases. The S P Gupta case (December 30, 1981) is called the“First Judges

Case”. The Court held that the president could refuse the recommendation of

the CJI. This brought a paradigm shift in favour of the executive having

primacy over the judiciary in judicial appointments for the next 12 years.

On October 6, 1993, came a nine-judge bench decision in the Supreme Court

 Advocates-on Record Association v. Union of India case — the“Second Judges

Case”. This was what ushered in the collegium system. For the next five years,

there was confusion on the roles of the CJI and the two judges in judicial

appointments and transfers. In many cases, CJIs took unilateral decisions

 without consulting two colleagues. Besides, the President became only an

approver.

In 1998, President K R Narayanan issued a presidential reference to the

Supreme Court ( Third Judges Case)as to what the term “consultation” really

means in Articles 124, 217 and 222 of the Constitution. In reply, the Supreme

Court laid down nine guidelines for the functioning of the coram for

appointments/transfers, which is the present form of the collegium.

 There is a marked difference between the practices of other countries. Sec. 2,

 Art. II, theUSConstitution states that the President of the United States with

the advice and consent of the Senate appoint all judges. There is no statutory

qualification for judicial appointment to theSupreme Court or the lower federal

courts. On the other hand inGermanyFederal judges are picked in an in-

camera-procedure by a body composed of a Minister of the federal state, federal

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MPs and ministers of the states (article 95 para. 2 of the federal constitution).

Candidates do not have to be professional judges, but lawyers. There is neither

public hearing, nor the identity of any candidate is disclosed to public.

 The reason for the gap of 15 years in appointing lawyer as a judge may revolve

around the question of neutrality as he maybe biased towards his previous

clients. Other criticism of collegium as the judge appointing bodymay lie in 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.

 Also, the fact that it is a closed-door affair without a formal and transparent

system, along with limited field of choice of senior-most judges from the High

Court, overlooking several talented junior judges and advocates raises doubts

about the efficacy of this system and calls for reforms.

 ARTICLE - 1

RECENT DEBATE ON THE JUDICIAL COLLEGIUM SYSTEM

 Does the government’s involvement in the appointment of judges to higher

courts pose a threat to the independence of the judiciary? This question is

central to the ongoing debate over the National Judicial Appointments

Commission (NJAC). The NDA government's decision to replace the collegium

system which has been in place since 1993, has left the legal fraternity

somewhat divided.

 A few members of the fraternity firmly believe the collegium system is

"unconstitutional and anti-democratic" where judges are appointed through

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"secret soundings and cronyism" while others say that the government wants to

"interfere" in the independence of the judiciary and it needs to be resisted.

Supreme Court of India.

 The collegium comprises the Chief Justice of India, four senior most judges of

the Supreme Court and the chief justice of a particular high court and its two

senior most judges. The NJAC, which was brought into existence after inserting

a new article (Article 124A) in the Constitution, consists the Chief Justice of

India as ex-officio chairperson, two other senior judges of the Supreme Court,

the Union Minister of Law and Justice and two eminent persons to benominated by a committee consisting the Chief Justice of India, the Prime

Minister, the Leader of Opposition in the Lok Sabha or where there is no such

Leader of Opposition, then the Leader of the single largest Opposition party in

Lok Sabha. The eminent persons shall be nominated for a period of three years

and shall not be eligible for re-nomination.

 At present, the Supreme Court is examining the constitutionality of the NJAC

and has refused to accept the government’s demand that the matter be referred

to a larger bench of 11 judges from the existing five-judge bench headed by

 Justice JS Khehar. The court has said the hearing of the case will "continue on

merits".

 Justice VN Khare, former Chief Justice of India, says there is nothing bad with

the existing system but accepts that there is scope for its improvement. "There

is nothing bad with the collegium system. It is, in fact, superior to the NJAC in

many ways. It will also be unfair to say that it is not transparent. But yes, it

can be further improved by making it more transparent. One or two persons

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nominated by the President can be included in the selection committee,” he

toldFirstpost.

 When asked who should be nominated, he says the President can nominate an

ex-CJI or judge in the collegium. But he strictly says there should be “no say of

politicians in the appointment of judges because usually, the government is the

main opponent in the people’s cases and there is chances abuse of executive

powers”.

He refused to accept the allegation of bias, favouritism and nepotism in the

appointment of judges but accepted that there is corruption in judiciary. “I

cannot claim that there is no corruption in the judiciary but its prevalence is

negligible,” he added.

 Adding that the government passed the NJAC Act in “undue haste and without

consulting the judiciary”, Professor Faizan Mustafa, vice chancellor of NALSAR

University of Law, Hyderabad, toldFirstpost, “The independence of the judiciary

is not the private right of judges; it is the right of citizens. Ultimately, judicial

legitimacy rests on public confidence in the courts. Appointment of judges is

seen as a crucial mechanism to achieve judicial independence. Judges must be

independent of executive, senior judges and in their ideology.”

“The NJAC in its present form may not achieve these ideals," he says arguing

"We had the primacy of executive in the appointment of judges in the first four

decades of our republic. Though most of the judges picked up under this

system were independent, upright and fearless, at times the government did

succeed in appointing several pliant and submissive judges." He feared that the

NJAC with Law minister as member may be used by the government in

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appointing judges of its choice. “Moreover, since the government is biggest

litigator, it should not be allowed to cherry pick judges.”

 There’s no clarity even on the two ‘eminent persons’ and the vagueness is

deliberate, he said. "They are to be selected by the Prime Minister, the Leader of

Opposition and the Chief Justice of India. One possibility is that two politicians

 would join hands and make the CJI’s opinion irrelevant as there is no mention

that the selection should be unanimous or alternatively the CJI in the hope of

 becoming Lokpal, Governor or NHRC Chairman would join the Prime Minister

and make the opinion of the Leader of Opposition insignificant”.

 Advocate Shahid Ali, senior lawyer at the Delhi High Court, says the “attempt

to interfere in the independence of judiciary through the NJAC will prove to be

fatal for the democracy and detrimental for fundamental rights guaranteed in

the Constitution”.

 Advocate KC Mittal, former president of Delhi High Court Bar Association and

ex-chairman of the Bar Council of Delhi, strongly opposes the collegium system

 but appears to be apprehensive about the future of the NJAC.

“After an extensive debate about the role and power of the judicial processes,

the framers of Constitution never agreed to absolute power to the judiciary in

matter of appointment of judges, leave aside the so-called innovative idea of

collegium. The text of our solemn document is very clear and unambiguous,”

he told Firstpost.

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“Prior to 1993, the executive alone had the over-riding power to make the

appointments in consultation with the judiciary. The names of aspirants to

 judgeship or recommendations thereto by the Chief Justice of a High Court

 would get examined in the closed system of the executive. It was not bound by

the recommendations and was competent to take final decision,” he argues.

However, in the Supreme Court Advocates-on Record Association vs Union of

India case, the nine-judge bench took over the power by judicial interpretation

to introduce the collegium system and make recommendations binding on

executive. Thus, the concept of “consultation” was judicially transformed into

“concurrence”.

“The system introduced by the judgment as reinforced by 1998 reference to the

Supreme Court has been practiced by the apex court and blindly followed by

the government since then. The Constitution remains as it was before the 1993

 verdict.

Interestingly, he says, the reaction of the bar then was positive as it thought

that the removal of “evils” in the appointment of judges would lead more

 welcome reforms, which would take care of “massive complaints of nepotism,

favouritism and even corruption”. “But soon, within a couple of years,

disappointment with the system was creeping as the scenario did not change.

Post 1993, the experience of two decades is that the system made by the

 judiciary proved to be no less worse than what was prevalent in the pre-

collegium days.

 The veteran lawyer alleged some compromise matrix works in recommending

the names at the whim and fancies of each member of the collegium. “This is

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not gossip but truth filtering out of the experience and knowledge gathered

over the years. Everyone connected with the administration of justice

pontificates on the need to fill up vacancies but refuses to remove the basic

causes affecting the process of appointment based on give-and-take. This pick-

and-choose formula is disastrous as it undermines the creditability and

 veracity of collegium mechanism. To put it differently, the experiences have

shown that those who have God Father in the higher ups make task easy and

smooth to push the name(s), even get cleared by the IB (intelligence Bureau) to

ultimately make appointment comfortably,” Mittal said.

He said people believe in evolution of the system but with the passage of time it

 becomes redundant. “When the executive-controlled system failed, the

collegium came in. When collegium is now under shadow, we jumped to the

NJAC but where is the guarantee that the new law would not go the same way?

Is it humanly possible that six members of a supreme body will have firsthand

knowledge of each and every candidate? They would ultimately depend either

on hearsay or some source of their own. This again would be unscientific,

irrational, unpractical and unworkable,” he said.

 ARTICLE -2

 Judicial Supremacy Vs Parliament: Why NJAC Is Better Than The

Collegium System

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India's politicians, in an extraordinary show of independence and political

maturity on Thursday, corrected an imbalance in the system of selecting and

appointing judges to the higher courts by approvinga constitutional

amendment to create a National Judicial Appointments Commission (NJAC).If

15 state legislatures also pass the constitutional amendments, the opaque

collegium system of appointing judges will be history.

 While the two bills to give effect to the creation of the NJAC were always a shoo-

in in the Lok Sabha given the NDA's majority, the fact that the Rajya Sabha too

 waved the bills through without dissent (and nil votes against) shows how

acutely all politicians from almost all parties felt about it. While one bill sought

to create the NJAC, the other one was a constitutional amendment bill to give

the NJAC statutory status.

 The constitutional amendment bill, once passed by the requisite number of

state legislatures, will ensure longevity to the NJAC since it would then require

another constitutional amendment to tinker with it. While somesenior lawyers

like Kapil Sibal and Fali Nariman are already muttering darkly about

challenging the bills and seeking a judicial review, the intent of parliament is

clear: the judiciary cannot appropriate the whole judges appointment process

and defeat the original intent of the constitution’s makers.

 The constitution clearly says that the executive will appoint judges after

consulting the judiciary. Articles 124 and 217 are the relevant laws on the

appointment of judges.

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 Article 124, inter alia, 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 statesas 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.” (emphasis mine).

 Article 217 says, inter alia:“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….”.

 The constitution is clear that the executive appoints judges in consultation

 with the judiciary. Not the other way around.

In 1993, the Supreme Court reversed the process by creating the collegium

system in which judges would appoint judges and the government could merely

object to their nominations. But the collegium could still go ahead with its

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decision. This usurpation of power is unprecedented in the history of

constitutional India. It is to end this usurpation that the NJAC bills were

enacted.

 There are good objections and bad for how the NJAC bills were formulated. The

objections include the following:

One, the judiciary was not consulted. The simple counter to this charge is

this: when the purpose of the new law is to end something that was never

intended in the constitution, and thecurrent CJI has openly defended the

collegium system,  what is the purpose of consultation? The powers of

parliament to legislate and amend the constitution are paramount. TheSupreme Court will get its chance to confirm the law's constitutional validity if

it finds any infirmity in it.

Two, the law has been changed with undue haste. This is certainly true. In

theory, the government could have gone through an elaborate process of

consultation. But the fact is law changes have been suggested for years now.

Even the author of the 1993 judgment which created the collegiums, the last

CJI JS Verma, admitted that the collegiums system had failed. And it is the

government's job to judge the political climate for what laws will pass and

 when. The fact that no major political party had serious issues with the NJAC

 bills shows that the laws have widespread acceptance among legislators.

Three, the NJAC diminishes the judiciary's role in the appointment of

 judges. This is not quite true. The new law says that judges will be chosen or

transferred by a six-member NJAC. Of the six, three would be the CJI and two

senior-most Supreme Court judges, two would be undefined “eminent persons”,

and one would be the Law Minister. If two of the members object to a judge’s

nomination or elevation, the matter would end there. The two eminent persons

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are themselves to be nominated by a three-member team – the CJI, the PM and

the Leader of the Opposition (or leader of the single largest party in the Lok

Sabha).

If half the NJAC members are judges, how is it tantamount to reducing the role

of the judiciary in judicial appointments? The two-member veto can, of course,

stop the judges from getting their choices in, but the reverse could also be true:

two judges, or two politicians, or two eminent persons, or a combination of any

two members of NJAC could hold a veto. If relationships in the NJAC are frayed,

there could be deadlock, but the fact is no one can shove a judge down

anyone’s throat. The judiciary’s role is not diminished; it is being counter-

 balanced by giving the executive and politicians some say. This was anyway the

original intent of article 124 – duly modified to widen the process of selection.

It is worth noting that in the US, judge selection is entirely a political process

(existing judges have no say) and in Britain (for England and Wales), the 15-

member Judicial Appointments Commission has 15 members, among whom

only five are judges. The chairman of the JAC is a lay person, and not a judge.

In contrast, in the Indian NJAC, the CJI is the head. There is no way anyone

can say the new law diminishes the judiciary.

Four,it is wrong to give the executive (or politicians) a voice in judicial

appointments. As the US and UK examples show, globally it is not judges who

appoint judges. Moreover, democracy means laws are made by elected

representatives, and not judges. Judges only have to interpret the laws and

check if they impinge on the basic freedoms guaranteed by the constitution. In

recent years, judges have been foraying into everything, including policy (as in

the 2G judgment, when the judges said natural resources can only be sold

through auctions), due to the general loss of faith in politicians. But voters

elect the same politicians. It cannot be any job of the judiciary to thwart the

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people’s will. The will of the people means the right to change the laws – as long

as they are not in contravention of the basic features of the constitution.

It could be that the composition of the NJAC could be improved, or that some

features (like the two-member veto) could be problematic. But we will know this

only when the law is implemented – just as we discovered the flaws in the

collegium system only after 15-20 years of operation.

 The NJAC may not be the best thing to happen to judicial appointments, but it

is a darn sight better than the opaque collegium system. We can fix the warts

once they are visible. Parliament can always fix what is broken, but right now it

is the collegium system that is broken. The NJAC ain’t broke.