National Judicial Appointments Commission Explained

Short Title:National Judicial Appointments Commission, 2014
Legislature:Parliament of India
Long Title:An Act further to amend the Constitution of India.
Citation:99th Constitutional Amendment Act
Territorial Extent:India
Date Assented:15 August 2014
Date Commenced:31 December 2014
Date Repealed:16 October 2015
Struck Down By:Supreme Court of India
Status:struck down

The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments of India. The commission was established by amending the Constitution of India through the 99th constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.[1] [2] The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme Court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission.[3] [4] [5] [6] The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014.[7] The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.[8] [9] [10] [11]

On 16 October 2015, the Constitution Bench of Supreme Court by a 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner.[12] [13] Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.[14]

Constitution of NJAC

A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition

As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:

These (two) eminent persons would have been nominated by a committee consisting of the

Promotional Hierarchy

All India Judicial Service

The All India Judicial Service Officers are group 'A' gazetted officers. The promotional hierarchy of All India Judicial Service officers is mentioned below (Bottom to Top)

All India Legal Service

The promotional hierarchy of All India Legal Service (Group 'A' gazetted officers) in mentioned below (Bottom to Top)

State Regional Legal Service

There shall be one state regional legal service cadre per state of India. The promotional hierarchy of State Regional Legal Service (Group 'A' gazetted officers) is mentioned below (Bottom to Top)

Indian Legal Services

All of the "Indian Legal Services" (Group 'A' gazetted officers) shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, statutory corporations, national apex bodies, public sector units, subsidiaries of public sector units, divisions of public sector units and all other government establishments under Government of India. The hierarchy of Indian Legal Services Officers in any of the central government establishments under the government of India shall be in the following manner.

The list of "Indian legal services" cadres shall be as follows:

State Legal Services

There shall be as many "State Legal Services" cadres per state of India as decided by the state governments of India. "State Legal Service" Group 'B' gazetted officers shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, state apex bodies, statutory corporations, public sector units, subsidiaries of public sector units, divisions of public sector units etc. and all other government establishments under each of the state governments of India. The hierarchy of state legal service officers in any of the state government establishments under any of the state governments of India shall be in the following manner.

The list of "state legal services" cadres shall be as follows:

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

Procedures to be followed by the Commission

The National Judicial Appointments Commission Bill, 2014, had laid down the following procedures for the selection of the Judges of the higher judiciary.

Procedure for selection of Supreme Court judges

Chief Justice of India

The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he/she is considered fit to hold the office. However, this must be according to the knowledge one possesses rather than the age.

Supreme Court judges

The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.

The Commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Procedure for selection of High Courts judges

Chief Justices of High Courts

The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other High Court judges

The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, 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 regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Challenge to the constitutionality

The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer associations and groups before the Supreme Court of India through public interest litigation writ petitions[15] who saw it as an attempt by the government to compromise with the independence of the country's judiciary. Earlier in August 2014, Supreme Court had dismissed the few writ petitions challenging the validity of NJAC on the ground that the challenge was premature as the constitutional amendment and the NJAC Act had not been notified then.[16] After the fresh challenge in 2015 after the acts were notified, a three judge bench of the Supreme Court referred the matter to a Constitution Bench.[17]

SC declares NJAC unconstitutional

In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014 meant to replace the two-decade old collegium system of appointing judges in the higher judiciary[18] stating that the NJAC was a clear attempt to compromise independence of the judiciary, which went against the Constitution's basic structure. The judgement was hailed by activist lawyers like Prashant Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jayaprakash Narayana opposed it.[19] [20] [21]

Support for NJAC

The only one of the five-judge bench who opposed the majority decision was Jasti Chelameswar, who held that the proposed composition of the NJAC would not be a constitutional issue, and that it could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”[22]

The ruling party of India, Bharatiya Janata Party, which has been the main advocate of the NJAC, remains committed to it, citing instances of favouritism & nepotism within the collegium system,[23] the most notable case being the D. Y. Chandrachud, son of former CJI Y. V. Chandrachud being elevated by the collegium to be the next CJI.

Later developments

On 3 November 2015 the Supreme Court upheld that it is open to bringing greater transparency in the collegium system within the following existing four parameters, with opinions from both the parties(petitioners who challenged the NJAC and the government).[24] [25]

On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court that the central government will not prepare a draft memorandum for judicial appointments contrary to committed earlier and suggested the same to be done through a judgement.[26]

On December 8, 2022, Vice President Jagdeep Dhankhar, who had also practiced in the Supreme Court as an advocate, commented in his maiden speech to the Rajya Sabha, that the Court's decision to strike down NJAC by invoking the basic structure doctrine, was an unprecedented encroachment on the powers of the parliament by the judiciary, thereby violating the theory of separating powers.[27]

See also

another proposed system of appointment to the judiciary under government oversight, introduced by Indira Gandhi.

similar attempt by the Israeli government under Benjamin Netanyahu to introduce greater government control over judicial appointments.

External links

Notes and References

  1. Web site: The Constitutions (Ninety-ninth) Amendment) Bill, 2014. Govt, of India. 15 August 2014.
  2. News: Rajya Sabha Passes First NJAC Bill. Bloomberg TV India.
  3. Web site: National Judicial Appointments Commission Bill, 2014. 15 August 2014.
  4. Web site: National Judicial Appointments Commission Bill, 2014. PRS Legislative Research. 15 August 2014.
  5. Web site: The Constitution (121st Amendment) Bill, 2014. Parliament of India. 25 August 2014.
  6. Web site: National Judicial Appointments Commission Bill, 2014. Parliament of India. 25 August 2014.
  7. News: New judicial panel gets President's nod, collegium system ends. 1 January 2015. PTI. Times of India. 31 December 2014.
  8. Web site: National Judicial Appointments Commission – Overview. 2 January 2015. 3 June 2015. 1, Law Street.
  9. Web site: Constitution (Ninety-ninth Amendment) Act, 2014. Gazette of India. 14 April 2015.
  10. Web site: National Judicial Appointments Commission Act, 2014 (40 of 2014). Gazette of India. 14 April 2015.
  11. Web site: NOTIFIED: Constitution (Ninety-ninth Amend) Act, 2014 & National Judicial Appointments Commission Act, 2014. 13 April 2015. 30 April 2015. 1, Law Street.
  12. Web site: Supreme Court Advocates-on-Record - Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF 2015). Supreme Court of India. 16 October 2015 . 17 October 2015.
  13. Web site: Supreme Court upholds collegium system of appointment of judges, rules NJAC unconstitutional . IBN Live. 16 October 2015.
  14. News: NJAC Act unconstitutional, collegium system to continue: Apex Court . 26 October 2018 . Press Trust of India . The Hindu Business Line . 16 October 2015 . en.
  15. News: NJAC Act and 99th constitutional amendment faces challenge at Supreme Court; petitions by AoR Association and Senior Advocates. 3 June 2015. 1, Law Street. 2 January 2015.
  16. News: NJAC premature challenge dismissed by the Supreme Court. 25 August 2014. 1, Law Street. 3 June 2015.
  17. Web site: Supreme Court refers NJAC Challenge to Constitution Bench – SCAORA v. UOI. 8 April 2015. 3 June 2015. 1, Law Street.
  18. Web site: SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]]. 16 October 2015. 21 October 2015. 1, Law Street.
  19. Web site: SC declares NJAC unconstitutional, upholds Collegium. THE HINDU. 16 October 2015.
  20. News: "India has taken a step backwards by retaining the collegium" - Senior Advocate KK Venugopal. 20 October 2015. Bar & Bench. 21 October 2015. https://web.archive.org/web/20151021065049/http://barandbench.com/india-has-taken-a-step-backwards-by-retaining-the-collegium-kk-venugopal/. 21 October 2015.
  21. Web site: From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act. FIRSTPOST. 16 October 2015.
  22. Web site: What the Indian judiciary has done to itself. Dev. Atul. The Caravan. en. 2019-07-20.
  23. Web site: 'Nepotism' in Collegium System, Alleges Allahabad HC Judge in Fawning Letter to Modi . 2024-07-02 . thewire.in . en.
  24. Web site: SC asks Centre to compile views to improve judge appointments. The Hindu. 3 November 2015.
  25. Web site: Collegium system will remain in existing parameters, says Supreme Court. IBN Live. 3 November 2015.
  26. Web site: AG pulls out of drafting procedure to appoint judges. The Hindu. 19 November 2015.
  27. Web site: 2022-12-07 . Jagdeep Dhankhar salvo at SC: Striking down NJAC glaring disregard of mandate, House sovereignty . 2024-07-03 . The Indian Express . en.

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