DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

BASICS OF LEGISLATIONS

2020-21

SYNOPSIS [ BASICS OF LEGISLATIONS ]

TITLE- NATIONAL JUDICIAL APPOINTMENTS COMMISSION

SUBMITTED BY - SUBMITTED TO –

Anurag Rai Dr. Shashank Shekhar Sir

Enrollment no. – 200101030 Assistant Professor

B.A.L.L.B (hons.) 1st Semester (Basics of Legislations)

Section ‘A’
 ABOUT NJAC

NJAC [National judicial appointments commission] is a committee of 6 member that was

instituted to begin more transparency in the process of appointed of judges of the higher
courts that are supreme court & high courts.
NJAC constitutes of chief justice of India as the chairperson & the next two senior most
judges of the supreme court of India.
Apart from that, two eminent people are selected by a committee of 3 members namely
[Chief Justice of India, Prime minister & leader of opposition]. The union minister of law
and justice is the sixth member in NJAC.

 HISTORY BEHIND NJAC

NJAC was introduced in India in the year 2014, when the central government came
up with NJAC bill 2014.
The bill was successfully passed from both the houses of the parliament as the
constitutional (99th amendment) bill, 2014
But no sooner the act was notified by the government, it was challenged through
various public interest litigations in the Supreme Court of India. Later, on 16th of
October, 2015 the apex court of India struck down the amendment & declared NJAC
unconstitutional.
 CRITICISM OF NJAC
 Independence of judiciary- independent of judiciary is something which is
highly ideal valued in a democratic country like India.
Citizens of India believe that judiciary is that last pillar of support which will
stop them from falling down & hurting themselves.
However, in past few days, a major point of debate over independence of the
Indian judiciary has been the method of appointment of judges.
In India, collegium system is the process which is used for the appointment
of judges in the higher judiciary.
However, in 2014, NJAC was introduced. It consisted of 6 members with 3
members from the judiciary & other 3 members were from outside the
judicial system.
And this created a lot of controversy. A lot of questions were raised &
various petitions were filed in the supreme court of India. After various
hearings the apex court in India declared the NJAC bill unconstitutional as it
tempers with the basic structure of the constitution.
Also it is not ambiguous that the presence of people from outside of the
judicial system will definitely be hampering the independence of judiciary
 and causing further disbelieve in the mind of Indian citizens for the judiciary
in India.

 CURRENT SCENARIO
Currently, collegium system is working implemented for the appointment of judges
in India. This system was evolved after 3 landmark judgments in the history if India
by Supreme Court, which is often referred as “3 judges case”.
In the next section we will try to know more about collegium system and its
evolution in India over the years, which will further help us compare more easily
which suits better for India.

 COLLEGIUM SYSTEM

Collegium system came into force in 1993. Before that law minister of India used to select
judges after consultation from chief justice of India.
Evolution of collegium system was completed after 3 landmark judgments of the supreme
court of India, which is also referred as “3 judges’ case”.

 CONTROVERSY OVER CONSULTATION

As per the law in 1982, law minister would have to consult the judiciary before the
appointment of judges in the apex court of India. And the whole controversy was
about the interpretation of the word ‘consultation’.
 FIRST JUDGE CASE [1982] - In this case court held that consultation only implies the
exchange of views between law minister & Judiciary for the appointment of the judges.
And it does not mean concurrence in any case.
And this was something which hit hard on the sovereignty of judiciary in India & also gave
enough power to legislation to intrude in the internal matters of the judiciary which
certainly is the violation of the rule of separation of powers.

 SECOND JUDGE CASE [1993] – In this case court reversed its earlier judgment of first
judge case in which it was held that consultation only refers as exchange of views.
The court held that consultation doesn’t only means the exchange of views in this scenario
but it also implies the concurrence.
Further, the court ruled that the advice of the chief justice of India to the president is
binding on the president of India during the process of appointment of judges of the
supreme court of India.
But the supreme court of India also made mandatory for the chief justice of India to consult
two of his senior most colleagues before advising to the president of India.
And this
 THIRD JUDGE CASE [1998] - The court opined that the consultation process to be
adopted by the chief justice of India requires “consultation of plurality judges” which will
make the process more transparent & reliable.
The supreme court of India held that the sole opinion of chief justice of India doesn’t
constitute the required consultation process.
CJI should consult a collegium of 4 senior most judges of the Supreme Court & consent of
minimum 4 judges including Chief justice of India is required to send the recommendation
of the appointment of judges to the president of India.
The apex court of India held that the recommendations made by the chief justice of India
without following the rule laid by the court for the consultation process, is not binding on
the president of India.
And thus Supreme Court laid the foundation of collegium system in India. Interestingly,
there is still no mention of the collegium system in the constitution of India.

 CRITICISM OF COLLEGIUM SYSTEM

 ADMINISTRATIVE BURDEN OF CHECKING PROFFESSIONAL

BACKGROUND DATA
As the law minister stated in 2018 via The Economic Times, “India has 19
judges per 10 lakh people on an average according to Law ministry data
which also states that the judiciary faces a combined shortage of over 6000
judges, including over 5000 in the lower courts itself.
And with this huge burden it seems difficult for the whole system to take this
on more area of work which will further slowdown the pace at which the
cases are solved. And hence, increase the no. of pending cases in India.

 CLOSED DOOR AFFAIR, LACKS TRANSPARENCY

As we know, the collegium system consist of 5 senior most judges which
includes Chief Justice of India and 4 other senior most judges. This is the
basic system by which appointment of judges is done in India.
However, this system often faces criticism on the issue of transparency. It is
alleged that there is lack of transparency as the collegium system is a closed
door affair and people outside of the system can only predict the process by
which the appointment of the judges take place.

 SOLUTION OF THE CRITICISM

After discussing about the criticism when we look for solution, it seems
difficult or almost impossible to solve the problem NJAC posses with it. As
selection of any member from outside of the judicial system not only causes
 breach of the principle of the separation of power but also hampers the
independence of the judiciary.
Meanwhile, talking about the criticism possessed by the collegium system I
found the following solutions.

1. ADMINISTRATIVE BURDEN
For this criticism an obvious choice is to increase the number of
judges in the Indian judiciary system.
Further, setting up of more fast track courts in each states especially
the states with greater number of pending cases can solve this
problem.
2. CLOSED DOOR AFFAIR, LACKS TRANSPARENCY
For the transparency issue, there should be robust discussion over the
process under which the collegium will appoint the judges to the
higher judiciary.
There should be specific criteria on which the judges should be
further promoted.
The rationale behind the appointment of the judges can also be sought
which will further enhance the transparency of the Indian Judicial
System.

 JUDICIAL APPOINTMENTS IN SOME OTHER COUNTRIES

 SOUTH AFRICA - All the judges of the higher courts are appointed by the
President of the National Assembly on the advice of the judicial services
commission. President appoints judges on the recommendation of 23 member
judicial services commission which includes Chief justice, barristers,
representatives of president, two practicing solicitors, one academic lawyer,
six members of the National Assembly, at least 3 of whom are members of
the opposition, minister of justice and others.

 UNITED STATES OF AMERICA -Appointments are made by the

President of USA. Candidates are assessed by a committee of the American
bar association and reviewed by the senate judiciary committee before a vote
in senate.

 CANADA- Appointments are made by the governor in council. A selection

panel, comprising five MPs reviews list of nominees and submits 3 names to
the prime minister.
  U.K. - Supreme Court judges are appointed by a five person appointment
commission. The commission comprises the President and deputy president
of the Supreme Court, and one representative from each of the proposed
judicial appointments commission for England and wales, the board for
Scotland, and the Northern Ireland judicial appointments commission.

 CONCLUSION

After going through this project, various articles and research papers and knowing the pros
& cons of both the NJAC and the collegium system I found that although there are plethora
of examples present where either of the system is implemented successfully, the country
India and its citizens are still confused about which of the two systems suits them better.
Both the systems have their own pros and cons, and they also have their own section of
people preferring them.
Meanwhile, after studying about both the NJAC and the collegium system I decided to focus
on the negatives they carry with them. My idea was if it possesses less & minor negatives
then it is more suitable for our country and brings more positivity.
Going through the negatives I found that although collegium system has its own negatives
but the harm that NJAC does is the issue which proves collegium system is more feasible in
India in comparison to National Judicial Appointments Commission which was proposed by
the central government in 2014 under 99th amendment act.
As discussed above, we just cannot solve the problem the NJAC possess with it.
Therefore, after considering all the thoughts and reasoning I found that NJAC is something
which is not feasible in a country like India, atleast for now....

 REFERENCES

 WEBSITES
 https://www.supremecourt.uk/about/appointments-of-justices.html
 https://indianexpress.com/article/explained/us-sc-judges-are-appointed-
justice-baders-seat-6607940/
 https://www.indiatvnews.com/news/india/njac-vs-collegium-system-
judges-appointment-different-countries-55350.html

 RESEARCH PAPERS
 Prannv Dhawan, Reform that you may preserve : Rethinking the judicial
appointments conundrum , Jun 15, 2020
 Neelakshi Gupta & Debayan Gangopadhyay, National Judicial
Appointments Commission: An Imperium In Imperio?

 Satyam Rathore & Ankita Rituraj, National Judicial Appointments

Commission an analysis of NJAC’s effect on judicial independence in
India.

 Taylor Francis, Indian Law Review, 16 March 2018, available online:

http://www.tandfonline.com/10.1080/24730580.2018.1443692