Follow us on
Welcome Guest! You are here: Home » Views & Analysis
Judicial Appointment Commission compromises Independence of Judiciary
Tuesday September 30, 2014 9:30 PM, Syed Ali Mujtaba.

The National Judicial Appointments Commission (NJAC) Bill, 2014 that is passed by the Parliament is mired in controversy regarding the selection procedures of the judges in higher judiciary. This bill seeks to replace the collegiums system of selection process and give the executive an equal role in judicial appointments. Being a Constitutional Bill it has to go through the motion of seeking consent of different States before getting President's assent.

At least 15 States have to ratify the NJAC Bill before it can be sent for Presidential assent and to be implemented. While NJAC Bill has sailed through the Rajasthan Assembly, West Bengal Chief Minister Mamata Banerjee has expressed doubts over it. Banerjee is reported to have sought clarity on the exact role to be played by the Governor in the appointment of High Court judges.

The constituting of National Judicial Appointment Commission NJAC comes through 121st Constitutional Amendment Bill 2014. In order to understand the necessity of NJAC, it is imperative to know the merits and demerits of the Collegium system that was devised by Supreme Court in 1993 for the appointment of judges.

The Collegium system was in consonance with the trend of judicial activism undertaken by the Supreme Court in the late 1980s. The system got concrete shape in 1998 in Third Judge case wherein SC laid down elaborate selection process of judges of higher judiciary.

Under the Collegium system, the Chief Justice of India would consult the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments.

The judiciary, by devising Collegium system in fact, rewrote the constitutional arrangement enumerated in Article 124 and Article 217 of the Indian Constitution which provided for a plurality of functionaries (executive and judiciary) by ensuring plurality of functionaries only within the judicial system.

However, the Collegiums system over the years has come under severe criticism on account of opaqueness in appointment and transfer of judges of higher judiciary.

Besides, the growing corruption and nepotism within the judiciary called for its transparency. The recent revelation by Jusitce (retd) Markandey Katju and Justice Dinakaran case is a pointer towards reforming the judiciary.

It is criticized that collegiums system does not provide an adequate tenure for the chief justices of the High Courts, the consultation process is secretive and unknown to the judiciary and the public, and meritorious candidates from the bar and High Courts are denied an opportunity to serve on the bench for undisclosed reasons.

All these allegations led to the Constitutional Amendment Bill to amend Article 124 (2) of the Constitution that provides for the appointment of the judges of higher judiciary, and inserts Article 124A, Article 124B and Article 124C providing for composition and function of the National Judicial Appointments Commission.

The NJAC Bill, 2014 lays down the procedure to be followed by the proposed six-member body for appointment and transfer of judges of higher judiciary. It empowers Parliament to enact a law regarding composition, function and procedure of the NJAC.

The NJAC comprises of six-members which include Chief Justice of India as Chairman, Union Law Minister, two senior-most Supreme Court judges and two eminent persons.

The two eminent persons will be selected by a collegiums comprising of Prime Minister, Chief Justice of India and leader of the opposition or the leader of the single largest party in the Lok Sabha.

Besides, one eminent person should belong to the SC, ST, women or minority community, preferably by rotation and will have tenure of three years.

The NJAC will recommend to the President for the appointment and transfer of judges of higher judiciary, viz., Supreme Court and High Courts. It will also make recommendations for the appointment of Chief Justice of India and Chief Justices of High Courts.

However the National Judicial Appointments Commission (NJAC) is not shorn of criticism, in fact there are many substantiate arguments raised against the NJAC

The legal fraternity argues that NJAC is a ploy to bring the judiciary within the ambit of executive in the garb of reforming collegiums system. Thus NJAC will limit the judiciary in scrutinizing the executive's malafide actions and its overreach.

It will compromise the independence of judiciary which has been cornerstone in ensuring the peoples' faith in democracy. The recent role of judiciary in 2G and Coalgate scam is a point in this direction.

Besides, it is argued that the NJAC has not laid down an objective procedure for appointments. These include norms to ensure transparency in nominations, criterion for assessing the suitability of the candidates and objective guidelines for determining meritorious candidates. Judges must also be ensured security of tenure as well as an adequate tenure period through the new mechanism.

The Supreme Court Advocates on Record Association has moved the apex court challenging the constitutional amendment and National Judicial Appointments Commission Bills.

The petitioner sought a declaration that the Bills were unconstitutional, null and void, and a direction that the present collegium system evolved by a nine-judge Bench of the Supreme Court should continue with the appointment of judges to the higher judiciary.

The petition said the NAJC Bill was introduced even prior to the Constitution 121 Amendment Bill to give constitutional status to the proposed National Judicial Appointments Commission. The Bill was passed in both Houses of Parliament by voice vote even as the provisions of Article 124(2), as originally enacted, were in force. Under such circumstances, introduction, consideration and passing of the NJAC Bill were an "exercise in futility and a nullity."

The petition contended that since Article 124(2) remained intact, there could be no introduction or passing by Parliament of the legislative Bill, known as the NJAC Bill. It said a constitutional amendment which was invalid for violation of the basic structure of the Constitution could not be forwarded to the State governments for ratification.

In this raging controversy the most important point is the independent and transparent judiciary is the sine qua non of a healthy democracy. In order to ensure independence of judiciary it is pertinent that the enacting of law relating to composition, function and procedure relating to NJAC should not be left to the Parliament which is based on floating majority.

On the other hand, the wider representation in the selection process should ensure that there is transparency and accountability in appointments and transfer of judges of higher judiciary.

As such there are still more loose ends that need to be tightened about the National Judicial Appointment Commission before it could replace the collegium system.

Syed Ali Mujtaba is a journalist based in Chennai. He can be contacted at

Share this page
Note: By posting your comments here you agree to the terms and conditions of
comments powered by Disqus
| Quick links
Contact us
Subscribe to: RSS » Facebook » Twitter » Newsletter Disclaimer | Terms of Use | Advertise with us | Link Exchange is part of the Awaz Multimedia & Publications providing World News, News Analysis and Feature Articles on Education, Health. Politics, Technology, Sports, Entertainment, Industry etc. The articles or the views displayed on this website are for public information and in no way describe the editorial views. The users are entitled to use this site subject to the terms and conditions mentioned.
© 2012 Awaz Multimedia & Publications. All rights reserved.