Constitutionality of NJAC is not perfect governing body to select appointments of judges of Supreme Court, High Court and transfer of high court judges. There is an argument that NJAC is Unconstitutional Or Void in some extend. Through NJAC government is trying to interfere or monitor the independence judiciary.
Former Chief Justice of India, Justice VN Khare says,
“Collegium system not perfect but superior to NJAC.
NJAC replace Collegium System:
National Judicial Appointment Commission Act, 2014 ensures to bring a change in the appointment of judges of Supreme Court, high court and transfer of high court judges. This act further seeks to replace the collegium system. The two bills the constitution (99th amendment) Act, 2014 and National Judicial Appointment Commission Act, 2014 (121st amendment) was passed in both the houses and it was published in gazette of India on 31st December, 2014.
NJAC Governing Body:
NJAC bench consist of six people
- The Chief Justice of India
- The Law minister
- The Two Most Senior Judges of Supreme Court
- Two Eminent Persons – Eminent persons are to be nominated by Chief Justice, the Prime Minister, and the leader of the opposition in the Lok Sabha for the term of three years and are not eligible for re-nomination. [1]
Reference Link : [1] http://indiankanoon.org/doc/1164880/
Collegium System Functionality:
The Collegium system consists of the Chief Justice of India and four most senior judges of Supreme Court for appointment and transfer of judges. Article 124 and Article 217 of the Indian Constitution defines the appointment of judges of Supreme Court and High Court.
Article 124 states – Every judge of the Supreme Court shall be appointed by the president by the warrant under his hands and seal and shall attain office until he attains the age of sixty five years.
Article 217 states – Appointment and conditions of the office of a judge of a High Court- Every judge of High Court shall be appointed by the president by warrant under his hand and seal and shall hold the office until he attains the age of sixty two years.
The collegium system was originated in a series called three judges cases.
Collegium System Limitations:
- When NJAC bill passed in both houses some people were criticizing collegium as a closed door affair and no transparency in working.
- The administrative burden of appointing High Court and Supreme Court judges and transfer of judges.
- No dedicated mechanism to check personal and professional backgrounds of prospective appointees.
- Collegiums system field of choice to senior most judges from the High Court for appointment to the Supreme Court, neglecting several talented junior judges and advocates.
- For example- Justice Dinakaran appointment for judge of Madras High Court even after corruption charges against him. Some feels that government wants to interfere in the working of the independence judiciary through NJAC.
Constitutionality of NJAC Justification:
So the question arises Does National Judicial Appointment Commission Act ensure the independence of Indian Judiciary.
NJAC amends
Article 124(a) defines composition of NJAC.
Article 123(2) – Creation of NJAC and inserts new articles.
Article 124(b) – Functions of NJAC.
Article 124 (c) – Powers of parliament to make laws on procedures.
Collegium Systems Transparency:
Collegiums system has been criticized for closed door affair and no transparency. When the NJAC bill was passed in both the houses it seems that the long pending demand for transparency and accountability have been forgotten in these new bills. Government wants interfere in the working of independence judiciary.
As Article 124(c) states – Parliament may, by law regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other judges of high courts and empower the commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. [2]
Reference : [2] Article 124(c) Indian Constitution
Former Chief Justice of India R M Lodha said
There is a misleading campaign to defame the judiciary and repeated attempts has been made to spread incorrect information. If there is a campaign to defame judiciary in the eye of public, you are doing great damage to a very important organ of the democracy. The world is not perfect. No system is perfect, no one is perfect, the society is not perfect and we all are from the society. We are not perfect. We cannot be, but we are very important institution in a democracy. [3]
NJAC Unconstitutional Or Void:
On 16th October, 2015 the Supreme Court held NJAC as unconstitutional and void. The existing system for the appointment and transfer of judges will become operative. The NJAC Act was rejected by the majority of 4:1.
Justice J.S Khehar explained in his judgment. [4]
It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary to safeguard the rights of the citizen of this country can be ensured by keeping it absolutely insulated and independent, from the other organs of the governance.
Reference: [4] http://www.thehindu.com/news/national/supreme-court-verdict-on-njacandcollegiumsystem/article7769266.ece
The five bench judges also said that the collegium system judges appointing judges is not perfect. The collegium is very useful and can be improved. Thus, some measures should be taken to improve this system and not repudiate it.
Neutrality of Constitutionality of NJAC is much complicated and transparency is not clear in some extend. But everyone has different opinion about constitution of NJAC. Do share your view with us that NJAC is Unconstitutional Or Void ?
