Battle Between NJAC And Collegium

By Guest Post -June 16, 20152

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This article is written by Debolina Roy, a student of UPES Dehradun.

The National Judicial Appointments Commission Act, 2013, introduced in the Lok Sabha on August 11,
2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad, in conjunction with the Constitution
as 121st Amendment Bill, 2014, established the National Judicial Appointments Commission (NJAC).
NJAC will be responsible for appointment as Chief Justice of India and other Judges of the Supreme
Court (SC) and Chief Justice and other Judges of High Courts (HC). The NJAC Act was bought into force on
13 April 2015. However, new appointments to High Courts and the Supreme Courts are not being made
because of the petitions filed against NJAC.

The composition will be, a six- member panel, headed by the Chief Justice of India and which will also
include two senior most Supreme Court judges, Union Minister of Law and Justice and two eminent
persons nominated by a committee comprising of the Prime Minister, CJI and Leader of Opposition in
Lok Sabha or leader of the largest opposition party in the Lok Sabha. Whenever a vacancy arises in the
SC or HC’s, the central government will make a reference to the NJAC and it will make recommendation
for the appointment of such. A person cannot be recommended for the appointment if any two of its
members do not agree to such recommendation. After such recommendation the President may require
the NJAC to reconsider the recommendations made by it and if NJAC makes a unanimous
recommendation after such reconsideration, the President shall make the appointment accordingly.

N.H. Hingorani, senior advocate of Supreme Court of India has written much about how the collegium
system of judicial appointment is constitutional invalid. As per Article 124 (pre-amendment) in the
Constitution of India, every judge of the Supreme Court shall be appointed by the President with the
consultation of the Judges of SC and HC as seems necessary to the President and also the Chief Justice
and similar in the case with the appointment of Judges in HC as stated in Article 217, where the
President has to consult the Chief Justice of India, the Governor and also the Chief Justice of the HC for
the appointment of the Judges. In the case of Supreme Court Advocated- on Record Association v. Union
of India, it was held that the Chief Justice of India will have the primacy in all judicial appointments and
no appointment can be made by the executive that is the President against the CJI’s assent. Thus, the
collegium came into being, consisting of the CJI and four senior most judges of the Supreme Court of
India. The collegium system has been criticized for its impracticality and opaqueness and improper
implementation. Therefore, the government argued that the NJAC will bring an end to this problem of
the collegium system and will strengthen the independence of the judiciary and not weaken it.

But the fact cannot be overlooked that NJAC is a pathway through which the executive gets its say in the
appointment of judges in SC and HC and though the CJI and other eminent judges are included along
with two other eminent person, the collective opinion of the three judges could anytime be vetoed out
by the other two members. This clearly shows that the judges and CJI will lose their say in the
appointment encroaching upon the independence of judiciary. The Constitution though has given power
to the President for the appointment but only after the consultation of the CJI and in the present
upcoming system the two eminent people is big question. Though the say of CJI’s opinion will be taken
into consideration in the appointment of the ‘two eminent persons’ but the presence of Prime Minister
and leader of opposition will have an upper hand. The person may know nothing about the working of
the judiciary and their appointment by the politicians will be against the purity of judicial standards,
which is the cornerstone of judicial independence, as said by the senior advocate Rajeev Dhavan.

A reform similar to this was recently tried out in France in a couple of Tribunaux correctionnels (criminal
courts), introduced trial by a jury consisting of six members of the public and three magistrates. But in
2013, the socialist administration of Francois Hollande decided to scrap this reform because it was
expensive, slowed down the judicial procedure and did not produce any significant change in results.

Similarly the present government of India is trying to introduce a reform consisting of the voice of
eminent person but it may not be a good approach. Advocate Prashant Bhushan, counsel for Centre for
Public Interest Litigation (CPIL) also had the opinion that making NJAC operational will be a cumbersome
process, rules will have to be frames, jurists to be selected. Scraping the 22 year old collegium will be a
change but according to my personal opinion it will be an encroachment upon the independence of
judiciary, moreover the Parliament already has an upper hand in the removal of judges through the
Constitution and granting power to make appointments even will be against the very nature of the
concept of three branches of government – executive, legislative and judiciary and their independence.
Though the Constitution provides with provision for the checks and balance within the three branches
but does not give the power for any branch to take away the power of any other branch. The pros and
cons are being brought up in the petitions lodged in this case and the judgment by the Supreme Court
will surely be in the benefit for a future successful India.
Constitutionality of NJAC and
Replacing Collegium System
By
 Sudip Ghosh
 -
December 14, 2016
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Constitutionality of NJAC is not perfect governing body to select

appointments of judges of Supreme Court, High Court and transfer of high
court judges. There is an argument that NJAC is Unconstitutional Or Void in
some extend. Through NJAC government is trying to interfere or monitor the
independence judiciary.

Former Chief Justice of India, Justice VN Khare says,

“COLLEGIUM SYSTEM NOT

PERFECT BUT SUPERIOR TO NJAC.
NJAC replace Collegium System:
National Judicial Appointment Commission Act, 2014 ensures to bring a
change in the appointment of judges of Supreme Court, high court and
transfer of high court judges. This act further seeks to replace the collegium
system. The two bills the constitution (99th amendment) Act, 2014 and
National Judicial Appointment Commission Act, 2014 (121st amendment)
was passed in both the houses and it was published in gazette of India on
31st December, 2014.

NJAC Governing Body:

NJAC bench consist of six people

 The Chief Justice of India

 The Law minister
 The Two Most Senior Judges of Supreme Court
 Two Eminent Persons – Eminent persons are to be nominated by Chief
Justice, the Prime Minister, and the leader of the opposition in the Lok
Sabha for the term of three years and are not eligible for re-
nomination. [1]

Reference Link : [1] http://indiankanoon.org/doc/1164880/

Collegium System Functionality:

The Collegium system consists of the Chief Justice of India and four most
senior judges of Supreme Court for appointment and transfer of judges.
Article 124 and Article 217 of the Indian Constitution defines the
appointment of judges of Supreme Court and High Court.
Article 124 states – Every judge of the Supreme Court shall be appointed
by the president by the warrant under his hands and seal and shall attain
office until he attains the age of sixty five years.

Article 217 states – Appointment and conditions of the office of a judge of

a High Court- Every judge of High Court shall be appointed by the president
by warrant under his hand and seal and shall hold the office until he attains
the age of sixty two years.

The collegium system was originated in a series called three judges cases.

Collegium System Limitations:

 When NJAC bill passed in both houses some people were criticizing
collegium as a closed door affair and no transparency in working.

 The administrative burden of appointing High Court and Supreme

Court judges and transfer of judges.

 No dedicated mechanism to check personal and professional

backgrounds of prospective appointees.

 Collegiums system field of choice to senior most judges from the High
Court for appointment to the Supreme Court, neglecting several
talented junior judges and advocates.

 For example- Justice Dinakaran appointment for judge of Madras High

Court even after corruption charges against him. Some feels that
government wants to interfere in the working of the independence
judiciary through NJAC.
Constitutionality of NJAC Justification:
So the question arises Does National Judicial Appointment Commission
Act ensure the independence of Indian Judiciary.

NJAC amends

Article 124(a) defines composition of NJAC.

Article 123(2) – Creation of NJAC and inserts new articles.

Article 124(b) – Functions of NJAC.

Article 124 (c) – Powers of parliament to make laws on procedures.

Collegium Systems Transparency:

Collegiums system has been criticized for closed door affair and no
transparency. When the NJAC bill was passed in both the houses it seems
that the long pending demand for transparency and accountability have been
forgotten in these new bills. Government wants interfere in the working of
independence judiciary.

As Article 124(c) states – Parliament may, by law regulate the procedure

for the appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other judges of high courts and
empower the commission to lay down by regulations the procedure for the
discharge of its functions, the manner of selection of persons for
appointment and such other matters as may be considered necessary by it.
[2]
Reference : [2] Article 124(c) Indian Constitution

Former Chief Justice of India R M Lodha said

THERE IS A MISLEADING CAMPAIGN

TO DEFAME THE JUDICIARY AND
REPEATED ATTEMPTS HAS BEEN
MADE TO SPREAD INCORRECT
INFORMATION. IF THERE IS A
CAMPAIGN TO DEFAME JUDICIARY
IN THE EYE OF PUBLIC, YOU ARE
DOING GREAT DAMAGE TO A VERY
IMPORTANT ORGAN OF THE
DEMOCRACY. THE WORLD IS NOT
PERFECT. NO SYSTEM IS PERFECT,
NO ONE IS PERFECT, THE SOCIETY
IS NOT PERFECT AND WE ALL ARE
FROM THE SOCIETY. WE ARE NOT
PERFECT. WE CANNOT BE, BUT WE
ARE VERY IMPORTANT INSTITUTION
IN A DEMOCRACY. [3]
Reference: [3] http://indianexpress.com/article/india/india-others/justice-
lodha-defends-collegium-system-says-there-is-a-campaign-to-defame-
judiciary/

NJAC Unconstitutional Or Void:

On 16th October, 2015 the Supreme Court held NJAC as unconstitutional
and void. The existing system for the appointment and transfer of judges will
become operative.  The NJAC Act was rejected by the majority of 4:1.

Justice J.S Khehar explained in his judgment. [4]

IT IS DIFFICULT TO HOLD THAT THE

WISDOM OF APPOINTMENT OF
JUDGES CAN BE SHARED WITH THE
POLITICAL-EXECUTIVE. IN INDIA,
THE ORGANIC DEVELOPMENT OF
CIVIL SOCIETY HAS NOT AS YET
SUFFICIENTLY EVOLVED. THE
EXPECTATION FROM THE
JUDICIARY TO SAFEGUARD THE
RIGHTS OF THE CITIZEN OF THIS
COUNTRY CAN BE ENSURED BY
 KEEPING IT ABSOLUTELY
INSULATED AND INDEPENDENT,
FROM THE OTHER ORGANS OF THE
GOVERNANCE.
Reference: [4]  http://www.thehindu.com/news/national/supreme-court-
verdict-on-njacandcollegiumsystem/article7769266.ece

The five bench judges also said that the collegium system judges appointing
judges is not perfect. The collegium is very useful and can be improved.
Thus, some measures should be taken to improve this system and not
repudiate it.

Neutrality of Constitutionality of NJAC is much complicated and transparency

is not clear in some extend. But everyone has different opinion about
constitution of NJAC. Do share your view with us that NJAC is
Unconstitutional Or Void ?