Author Name:   paarthgupta

Article 217 says Every judge of the High court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India (CJI), The Chief Justice of High court

National Judicial Appointment Commission Act

Background: The Constitution of India clearly states that the executive will appoint judges after consulting the judiciary. Article 124 and Article 217 are the relevant laws on the appointment of judges.
Article 124 says “Every judge of the Supreme court shall be appointed by the President by warrant under his hand and seal after consultation with such judges of the Supreme court and of High court in the states as the President may deem fit for the purpose…”

Article 217 says “Every judge of the High court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India (CJI), The Chief Justice of High court.1
However in 1993 The Supreme court reversed the process by creating the collegiums system in which judges would appoint judges and the government could merely object their nominations

Collegium System:
The collegium system consists of the appointment, removal and transfer of the judges by the Chief Justice of India (CJI) and four other Supreme court judges. It is the system or process through which the decisions related to appointments and transfer of the judges of the Supreme court and High court is taken by a collegiums which consists of Chief Justice Of India, Four senior most judges of the Supreme Court and three members of the concerned High court (in the matter related to High court) including the Chief Justice of the High Court.

However this system of appointing judges has been criticized for promoting nepotism, corruption and being non-transparent. The collegiums was essentially criticized on the ground that the judiciary assumes complete control over its own composition. It is believed that though this system ensured independence of judiciary with no political interference but it has been criticized for being secretive with no prospective criteria mentioned for the appointment and removal of judges.

Drawbacks of the Collegium system
• The transparency is one of the fundamental notion of democracy and thus collegiums system contradict such notion as it maintains high secrecy.
• The Indian collegiums system is alone system where judges appoint the judges, thus it takes the shape of autocracy.
• The collegium only consider the seniority as a sole merit and no heed or importance given to other essential traits.
• In collegium system there was no transparency and there was no accountability.

Hon’ble Justice Katju alleged that “ various appointments of the judges were being undertaken based on unknown criteria, even though the appointees were allegedly corrupt-they were appointed nonetheless”
It is in the light of these malfunctions and absolute breakdown of collegiums system that a change requires to be brought forth and hence the National Judicial Appointment Commission bill was made.
Hence seeing the drawbacks of the collegiums system in our democracy the National Judicial Appointment Commission Bill was drawn that will ensure transparency, accountability and stability in the Indian Democracy

National Judicial Appointment Commission Bill 2013

The Constitution (99th Amendment) Bill and the JAC Bill, 2013 were introduced in the Rajya Sabha and in Lok Sabha on August 30 2013 and August 29 2013 respectively.

The Constitution (99th Amendment) Bill 2013 amends the provisions related to the appointment and transfer of judges to the higher judiciary.

It establishes a judicial appointment commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary.

The functions of the judicial appointment commission include making recommendations for the appointment of Chief Justice of India, Supreme Court judges, Chief Justice and other High court judges and transfer of High court judges.

The Bill amends Articles 124(2), 217(1), 222(1) and 231(2) related to appointment of Supreme Court judges and appointment and transfer of High Court judges. It replaces the current collegiums system with that of a JAC.

It is a proposed body responsible for the appointment and transfer of judges to the higher judiciary in India.

The new law replaces the 22 year old collegium system that kept the government out of the selection process for Supreme Court and High Court.

Table 1 Comparison of various recommendations on the composition of a proposed appointments body

Composition of National Judicial Appointment Commission

1) Chief Justice of India (chairperson ex officio)\
The Commission will consist of the following persons:-
2) Two other senior most judges of Supreme Court
3) Union Minister of Law and Justice, ex officio
4) Two eminent persons to be nominated by a committee consisting of Chief Justice of India (CJI), Prime Minister and leader of opposition in Lok Sabha. One person would be from SC’s or ST’s or OBC or a women.

Functions of Judicial Appointment Commission

The functions of the Judicial Appointment commission (JAC) includes the making of recommendation for
• The appointment of Chief Justice of India (CJI) , Supreme court judges, Chief Justice and other judges of High courts.
• Transfer of Chief Justices and other High court judges from one High court to another.
• The JAC will also seek to ensure that the person recommended is of ability and integrity.
• For the appointment of High court judges, the JAC will elicit views of the governor, Chief Minister (CM) and Chief Justice of the High court of relevant state in writing.

Constitutional Provisions relating to National Judicial Appointment Commission

Article 124A says that a Commission known as National Judicial Appointment Commission is formed consisting of Chief Justice of India(CJI), two senior judges of Supreme Court, Union Minister in charge of law and justice, Two eminent persons nominated by a committee of Prime Minister, Chief Justice of India and opposition leader. Such eminent person to be nominated for a period of three years and cannot be re-nominated again. Actions of National Judicial Appointment Commission cannot be questioned on the ground of existence of error in the constitution of commission.

Article 124B states that the duty of National Judicial Appointment Commission is to recommend persons for the appointment as Chief Justice of India, Supreme court judges, Chief Justice of High court and other High Court judges and will make recommendations regarding the transfer of Chief Justices and judges of High Court from one high court to another high court.

The National Judicial Appointment Commssion Act 2014

“An Act to regulate the procedure to be followed by the National Judicial Appointment Commission for recommending persons for appointment as the Chief Justice of India and other judges of the Supreme Court and Chief Justices and other judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.”

Important Provisions
Short title and commencement
1)This Act may be called the National Judicial Appointments Commission Act, 2014.
2)It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Definitions
In this Act, unless the context otherwise requires,-
(a) “Chairperson” means the Chairperson of the Commission.
(b) “Commission” means the National Judicial Appointment Commission referred to in Article 124A of the Constitution
(c) “High Court” means the High Court in respect of which recommendations for the appointment of a judge is proposed to be made by the Commission
(d) “Member” means a Member of the Commission and includes its chairperson.
(e) “Prescribed” means prescribed by the rules made under this Act.
(f) “Regulations” means the regulation made by the Commission under this Act.

Section 3 Headquarters of the Commission
The Headquarters of the Commission shall be at Delhi.

Section 4 Reference to the commission for filling up of vacancies

(1)The Central Government shall, within a period of 30 days from the date of coming into force of this Act, intimate the vacancies existing in the posts of judges in the Supreme Court and in High Court to the Commission for making its recommendation to fill up such vacancies.
(2) The Central Government shall, six months prior to the date of occurrence of any vacancy by reason of completion of the term of a judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendation to fill up such vacancy.
(3) The Central Government shall, within a period of thirty days from the date of occurrence of any vacancy by reason of death or resignation of a judge of the Supreme Court or of a High Court, make a reference to the Commission for making its recommendations to fill up such vacancy.

Section 5 Procedure for selection of judge of Supreme Court

Chief Justice of India:- The Commission shall recommend the senior most judge of the Supreme Court for the appointment as Chief Justice of India if he is considered fit to hold the office. However this must be according to the knowledge one possess rather than the age.
Supreme Court Judges:- The Commission shall recommend the names of the persons on the basis of their ability, merit and other criteria specified in the regulations.
The Commission shall not recommend a person for the appointment if any two of its members do not agree to such recommendations.

Section 6 Procedure for selection of judge of High Court

Chief Justice of High Court:- The Commission shall recommend a judge of a High Court to be the Chief Justice of High Court on the basis of seniority and ability, merit and any other criteria of suitability.
High Court Judges:- The Commission shall seek nominations from Chief Justice of the concerned High Court for the appointments of High Court judges.
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 regulation.
The Commission shall elicit the views of the Governor and Chief Minister (CM) of the state before making the recommendations.
The Commission shall not recommend a person for the appointment if any two members of the commission do not agree to such recommendation.

Advantages of National Judicial Appointment Commission

# Transparency:- The National Judicial Appointment Commission ensures transparency because of an organized procedure for the appointment by means of consultation from all organs of the government. This was not possible with the collegiums system where appointments are more of back door operations and no specific mechanism or criteria for selection of candidates.

# Accountability:- Since the National Judicial Appointment Commission contains Chief Justice of India, Law minister and opposition leader has a say there is no scope or less scope of political influence towards any appointment and the NJAC is answerable to every appointment.

# Faster appointments:- Gone are the days where an appointment used to be delayed because National Judicial Appointment Commission will be estimating the potential vacancies in the near future and six months before the vacancy can happen which makes it easy for a fresh appointment immediately. This further adds to the speedy justice delivery too.

# Growing corruption and nepotism in judiciary will be checked by the National Judicial Appointment Commission.

Critical Observations of National Judicial Appointment Commission

# Arbitrariness in the appointment of “eminent persons” :-The procedure for the appointment of two eminent persons who will serve in the National Judicial Appointment Commission(NJAC) does not provide any process or criteria to evaluate eminence. It is completely left to the committee comprising of the Prime Minister, leader of opposition and Chief Justice of India to determine who are the eminent persons. Article 14 of the Indian Constitution provides for equality and non-arbitrariness in the decision making. A process that fails to provide any criteria for evaluation of eminence violates the fundamental rights of protection against arbitrary action

# Veto power of the two members of National Judicial Appointment Commission:- One of the serious problem of the National Judicial Appointment Commission Act is its recognition of the veto power to the two members of the NJAC. These veto powers that are being given to any two members of the NJAC effectively allow an arbitrary approach to the decision making within the NJAC. There is no criteria on the basis of which the veto powers could be exercised.

# Salaries, allowances of the “eminent persons”:- Article 112(3)(d)(i) and Article 202 (2)(d)(iii) of the Indian Constitution mandates that the salaries, allowances and pension payable to the judges of the Supreme court of India and High court of eaxh state shall be charged out of the Consolidated fund of India and consolidated fund of the state respectively. The significance of these provisions is that any such expenditure cannot be made subject to the votes of the Parliament and the Legislative Assembly. These provision go a long way in securing the independence of judges of the Supreme court and High court. However, the salary of the “eminent persons” who are proposed to be the members of the commission have been left at the whim and fancy of the Central Government vide section 11(2)(a) of the Act.

# Judicial independence:- The executive under the bill being made responsible in the appointment of judges would impede judicial independence and may result In appointments undertaken to serve the executive interests.

# Violates the Basic Structure:- “ Basic structure is violated because the body ( National Judicial Appointment Commission) sought to be created does not have the salient features of the body(collegiums) substituted. It is the basic structure of the constitution that judiciary should be separated from the legislative wing. By introducing the NJAC it is clearly shown that legislative wants the intervention in the system of judiciary.


# The bill also states that if any two members of the commission disagree with any appointment or transfer of judges, the same shall not be recommended by the commission. This leaves a lot of uncertainty as it could be ‘any two persons’ of the commission rejecting or disagreeing with the appointment or transfer of judges.

Conclusion
The National Judicial Appointment Commission seek to remove the old system of judicial appointments, whereby the three senior most judges of Supreme court(“the collegiums”) decided upon the appointments to the Supreme court. Through a new Article 124A of the Constitution they seek to bring into existence a National Judicial Appointment Commission, comprising of six members (the three senior most judges of the Supreme court, two eminent persons and the law minister). The National Judicial Appointment Commission (NJAC) is a proposed body responsible for the appointment and transfer of judges to the higher judiciary in India. Anew Article 124A which provides for the composition of the NJAC has been inserted into the constitution. It provides transparency, accountability, faster appointments and fast delivery of justice but on the other hand it is criticized because there is arbitrariness in the appointment of eminent persons as well as it impedes the judicial independence.

The author can be reached at: paarthgupta@legalserviceindia.com

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