APPROACH:

• Introduce with NJAC Act 2014
• Give arguments for and against the NJAC.
• Conclude by bringing the recommendation of the law commission report.

Answer:

The National Judicial Appointments Commission (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 their transfers.

The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.

Arguments in favour of NJAC:

1. Good for democracy: Democracy, which is also a basic feature of the constitution, requires that no organ of the state, including the judiciary, enjoys absolute freedom.
2. Non-formal and opaque Collegium system: It is a closed-door affair without a formal and transparent system and has also been accused of nepotism.
3. Public Confidence in the Judiciary: To retain “public confidence”, “judicial appointments” must have some checks and balances.
4. Upholds Constitution: The Basic structure of Separation of powers and the Independence of the Judiciary from the executive remains intact under the NJAC as its chairperson is the CJI.

Arguments against NJAC:

1. Unconstitutional: Introduction of Article 124 A in itself violates the basic structure of “Primacy of the CJI” as laid down in the second judges' case of 1993.
2. Culture of reciprocity: The involvement of the legislature in the appointment of judges might lead to the creation of a culture of ‘reciprocity.’
3. Independent-minded Judges: 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.
4. Inclusion of Eminent personalities: The NJAC Act provides arbitrary power to the Union executive to appoint two eminent personalities to the NJAC body.
5. The applicability of veto power by the two eminent personalities was speculated to be biased.

The Law Commission in its 214th Report on Proposal for Reconsideration of Judges cases I, II and III recommended two solutions:

• To seek a reconsideration of the three judgments before the Supreme Court.
• A law to restore the primacy of the CJI and the power of the executive to make appointments.