DIFFERENTIATION BETWEEN COLLEGIUM SYSTEM AND NJAC

What is the NJAC?

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed
to replace the present Collegium system of appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-
most judges of the Supreme Court recommend appointments and transfers of judges.
However, it has no place in the Indian Constitution. The system was evolved through
Supreme Court judgments in the Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire
within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture,
creating a rift between the haves and have-nots. “While politicians and actors get instant
relief from courts, the common man struggles for years for justice.”
How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth
Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya
Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial
Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were
ratified by 16 of the State legislatures and the President gave his assent on December 31,
2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13,
2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the
Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to
be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime
Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-
nomination.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges
– can veto any name proposed for appointment to a judicial post if they do not approve of it.
Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the
support of other members of the commission to get a name through.
What was the Contention?
The contention was on two ‘eminent persons’ in the NJAC panel.
One of the eminent persons nominated should be from Scheduled Castes, Scheduled Tribes,
Other Backward Classes, minorities or women.
The two eminent persons to be nominated for a period of three years and no re-nomination
allowed.
Nomination of two eminent persons to be finalised by a panel comprising the Prime Minister,
Chief Justice of India and the Leader of Opposition.
According to Section 5 of the NJAC Act, if two members disagree with the recommendation,
the Commission can’t make that recommendation.
The petitioners say, the two nominated members can veto a decision of the NJAC and thus
the government will control the NJAC’s decisions.
What is good about the collegium system?
A simplistic understanding might make the collegium system look rather opaque, especially
because only judiciary has the power to select future judges. However, this is also a way to
make judiciary independent of politics. Having been kept outside of the legislature and
executive, the system is believed to keep selection of future judges free from outside
interference. It upholds the seniority of candidates and is supposed to abide by the principles
of separation of powers in the Constitution. With the government’s involvement, many fear
the judiciary might have to compromise on its independence.
What are the arguments against collegium?
According to a PTI report, the Centre has termed the system of judges appointing judges
“illegal”.
A First Post report says the Collegium system was not proposed by Indian Constitution; it has
evolved to what it is today through two Supreme Court judgments.
Before the collegium system came into being, the process for selection of judges was done as
mentioned in Constitution.
Article 124 of the Constitution says: “Every Judge of the Supreme Court shall be appointed
by the President by warrant under his hand and seal after consultation with such of the judges
of the Supreme Court and of the high courts in the states as the President may deem
necessary for the purpose and shall hold office until he attains the age of 65 years: Provided
that in the case of appointment of a judge other than the chief Justice, the chief Justice of
India shall always be consulted.”
Article 217 says: “Every judge of a high court shall be appointed by the President by warrant
under his hand and seal after consultation with the Chief Justice of India, the Governor of the
state, and, in the case of appointment of a judge other than the chief Justice, the chief Justice
of the high court….”.
That is, according to the Constitution, the executive is empowered to appoint judges in
consultation with the judiciary. But in 1993, the Supreme Court created a collegium and
empowered judges to appoint judges; the government could raise objections if it wanted, but
the collegium could still go ahead, the report says.
“20 state assemblies had ratified it (NJAC)... the principal author of the 1993 Supreme Court
judgment, which led to the collegium system, (late) Justice J S Verma had also suggested a
serious rethink on the collegium system and so had Justice V R Krishna Iyer,” a Times of
India report on Friday quoted Telecom Minister Ravi Shankar Prasad as saying.
What is good about NJAC?
In NJAC, there are three members outside of the judiciary and three members from judiciary.
Also, the government and the Opposition could nominate members to the council which
made the council diverse.
In NJAC, members have veto power. If two members veto a nomination or decision, the
matter is dropped, says the First Post report.
In the petition filed by advocate Prashant Bhushan and the Centre for Public Interest
Litigation against the NJAC Act, it was said that the collegium system must be scrapped as
well, and a full-time judicial appointments commission, independent of the government and
the judiciary, should be constituted to select judges. This body could work in a transparent
and scientific manner by laying down the criteria for selection, advertising of vacancies and
evaluation of applicants/nominees on a discernible basis on the criteria laid down.
Arguments against NJAC
The National Judicial Appointments Commission Act was “against the basic features of our
Constitution”, though the collegium system is not entirely flawless, a Zee News report said,
quoting top lawyers and legal experts. The Constitutional validity of NJAC was challenged
by several bodies and groups on the ground that it might dilute the independence of the
judiciary by giving the government and the political class a substantial say in the process of
appointments, said by Prashant Bhushan.
One of the main concerns regarding NJAC was the involvement of government in the
council. The main ground on which the Supreme Court made its judgment on Friday was that
by giving the government a substantial say in the appointment of judges, NJAC might
compromise the independence of the judiciary.