In News:

• Recently, the Supreme Court made it clear that the collegium system for appointment of judges is the law of the land and the Centre would have to follow it till it is replaced or changed.
• It observed that the bitter failure of the National Judicial Appointments Commission (NJAC) cannot give reasons to the government to take on the judiciary by delaying Collegium recommendations.

What’s in today’s article:

• Collegium system
• National Judicial Appointments Commission
• News Summary

Collegium System

• The current collegium system has evolved over a period of time through the judicial pronouncements. These cases have been mentioned as below:
  • First Judges Case (1982)
    • SC held that consultation does not mean concurrence
    • Gave Primacy to Executive.
  • Second Judges Case (1993)
    • Court reversed its earlier ruling by changing the meaning of consultation to concurrence.
    • Advice tendered by CJI is binding.
    • CJI would take into account the views of two of his senior most colleagues.
  • Third Judges Case (1998)
    • Court gave primacy to the opinion of CJI in the matter of appointment of Judges
    • However, Chief Justice must consult four senior most judges of SC.
    • Opinion of all members of the collegium should be in writing.
    • If the majority of the collegium is against the appointment of a particular person that person shall not be appointed.

National Judicial Appointments Commission (NJAC)

• The NJAC Act, 2014 was enacted to regulate the procedure to be followed for recommending names for appointment as Chief Justice of India and other judges of Supreme Court and Chief Justices and judges of High Courts and for their transfers.
• The commission was established by the 99th Constitutional Amendment Act, 2014.
• The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society. 
• However, in October 2015, Supreme Court struck down as unconstitutional an amendment to the Constitution establishing the NJAC.
  • The five-judge bench struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio.

Rational Behind Bringing NJAC:

• The NJAC amended the Constitution, so the second judges case that created the collegium is irrelevant because the Constitution is now different from what it was back then.
• The NJAC is good for democracy (which is also a basic feature of the Constitution) and requires that no organ of the state, including the judiciary, enjoys absolute freedom.
• Judicial appointments “must be seen both in the context of independence of the judiciary as also the need for checks and balances on it".
• The NJAC Act involves a smooth and transparent process for the appointment of judges.
  • Collegium system’s opaqueness was blatantly expressed as the proceedings of the collegium are inaccessible to the public and, therefore, it lacks transparency.
• The executives with administrative machinery are seen as capable of making enormous and valuable contributions to the selection process.

Why unconstitutional:

• The involvement of the legislature in the appointment of judges might lead to the creation of a culture of ‘reciprocity.’
• The future judges appointed under NJAC cannot be expected to be independent-minded.
  • The Union Law Minister is the member of the commission responsible for their appointment.
• The NJAC Act would compromise the principle of independence of the judiciary guaranteed under the existing collegium system.
  • The basic structure of the Constitution enshrines that the judiciary is solely responsible for the appointment of judges.
• The NJAC Act provides arbitrary power to legislatives and executives to appoint two eminent personalities into the NJAC body.
• The applicability of veto power by the two eminent personalities was speculated to be biased.

News Summary:

• The Supreme Court linked the failure of the NJAC to the government’s willingness to indirectly take on the judiciary by delaying Collegium recommendations.
• The top court expressed anguish over the Centre not clearing names recommended by the collegium.
  • It said some names are pending with the government for a year and half.
  • Government sometimes picks just one name from among those recommended by the Collegium and thereby completely disturbing the seniority.
• The SC also pointed out that its 2021 verdict setting a timeframe for authorities involved in the appointment process was not being followed.
  • In its order, the apex court had said that the Centre must make the appointment immediately or it can send the recommendation back for reconsideration.
  • If the names are reiterated then they should be appointed within 3-4 weeks.
    • There was no timeline prescribed for the Centre to forward recommendations, resulting in inordinate delays in appointment of judges.