This article is written by Narendra Mohan, a student of Lucknow University.
After much conflict and cross swords over the making of higher judicial appointment between executive and judiciary, the legislative body finally come to a step closer to scrap the two-decade old Supreme Court operated “collegium” system for the appointment of judges of higher judiciary by giving the constitutional validity to National judicial appointment commission by inserting Art. 124 A in the constitution. Now this system is deemed to be more comprehensive, transparent, accountable and broad-based mechanism for making such appointment.
Recently the elevation of Karnataka high court judge, KL Manjunath as the chief justice of Punjab and Haryana High Court also boost the irregularity of collegium system. CJI also accepted the limitations in this system but added it would be wrong to claim that the system has not worked at all.
Before 1993 the appointment of judges of higher judiciary is done by the Union law minister. After 1993, the Supreme Court has done away the consultative process and introduced a new system named “collegium” for the appointments of judges of higher judiciary devised by Supreme Court itself which was the outcome of second judges transfer case in 1993. Now this perspective has been changed by introduction of National Judicial Appointment Commission Bill, 2014 passed by both the houses (Lok Sabha: August 13, 2014, Rajya Sabha: August 14, 2014) which provides for the constitution of six- member body for the appointments and transfer of higher judiciary. While stating its aim, the union law minster Mr. Ravishankar Prasad said, “The bill is aimed to ensure that the meritorious people are selected as judges to the higher courts. Also this law does not impact on the independence of judiciary.”
Some of the features of the proposed law are given below:
- Establishment of a commission named National judicial Appointment Commission consist of six members CJI, Union Law and justice Minister, two senior most judges of supreme court and two other eminent person nominated by a committee comprising of PM, CJI and leader of opposition in Lok Sabha from SC/ST/women or minority community.
- Reference by central government to NJAC about the vacancies of judges of HCs and SCs.
- Recommendation by NJAC for appointment of senior most judge of Supreme Court as CJI.
- Appointment of judges of HCs: recommendation to be made by NJAC of CJ of high court on the basis of seniority, merit and ability.
- Recommendation for appointment of any judge of high court to made on the basis of views provided by the concerned CJ with two senior most judges, CM and the Governor of the state.
- NJAC also empowered to recommend the name of judges to transfer the judges from one high court to another and formulate the procedure in this regard.
- Appointment basis must not be solely the seniority but it must be the ability and merit also.
- Veto power of members: no recommendation if two members do not agree to such recommendation.
- President is empowered to direct the NJAC to reconsider the recommendation made by it.
However, this new approach is criticized by RM Lodha, CJI stating that “I also appointed from the same collegiums system and if it is wrong then how my appointment can be right?” Further many other learned judges opposed the new approach by holding that this will increase the inference of executive in the judiciary due to which the supremacy of judiciary may be affected due to political pressure under this system.
In USA the Judicial Appointment Commission comprised of 18 senate members while in UK these members are 70 but in the present law, the veto power is given only to the two members that will lead to more political interference in the judiciary. In any selection, if the two members do not agree, the voice of judicial members can be silenced and no recommendation can be made which may lead to compromise several times during appointments.
Therefore the new system may increase the corruption in the most respected organ of the democracy as the appointment system of its officers may lead to politicizing the vary structure of judiciary.