On this page you will read detailed information about National Judicial Appointments Commission Act.
As a lawyer or legal scholar, you likely have a strong interest in the current state of judicial appointments in India. The establishment of the National Judicial Appointments Commission (NJAC) in 2014 represented a major change to the process of appointing judges to the higher judiciary. However, the NJAC Act was struck down as unconstitutional just a year later in 2015. In this article, you will closely examine the NJAC Act, its provisions, and the Supreme Court’s reasoning for overturning it. Gaining a nuanced understanding of this important legislation and judicial ruling will strengthen your knowledge as a legal professional and allow you to engage thoughtfully in debates on judicial appointments in India. Through a balanced, evidence-based analysis, you will be equipped to draw your own informed conclusions on this complex issue at the intersection of law, politics and governance.
Understanding the National Judicial Appointments Commission Act
The National Judicial Appointments Commission Act (NJAC) was passed in 2014 to change the process of appointment of judges in the higher judiciary. Prior to the NJAC, judges were appointed by a collegium system, wherein the Chief Justice of India and a forum of senior-most Supreme Court judges recommended appointments and transfers of judges.
Changing the Appointment Procedure
The NJAC aimed to make the process of appointment of judges more transparent and accountable. It proposed to replace the collegium system with a six-member commission, including the Chief Justice of India, two senior-most Supreme Court judges, the Union Minister of Law and Justice, and two eminent persons nominated by a committee. The NJAC required appointments to be made on the basis of a candidate’s capability, merit, and suitability rather than seniority alone.
Addressing Criticism of the Collegium System
The collegium system was criticised as being non-transparent, subject to nepotism, and concentrating excessive power in the hands of senior judges. The NJAC attempted to address these concerns by making the appointment process more consultative. However, some critics argue the NJAC still did not make the process transparent enough and gave excessive power to the executive. The NJAC was also challenged on grounds of unconstitutionality, and the Supreme Court struck it down in 2015, restoring the collegium system.
Ongoing Debate
There is an ongoing debate around reforms in the judiciary to balance judicial independence and accountability. The collegium system is still seen as non-transparent by some, but others argue it protects the independence of the judiciary. There have been suggestions to revisit the NJAC to address concerns while protecting judicial independence. There is no consensus on an alternative system as yet. The issue of appointment of judges remains controversial and deeply debated in India.
In summary, the NJAC aimed to reform the collegium system of appointing judges but was struck down by the Supreme Court. There remains no consensus on the appropriate system to balance judicial independence and accountability. The debate around India’s judicial appointments process is complex and unresolved.
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Key Features of the NJAC Act
The National Judicial Appointments Commission (NJAC) Act introduced several key changes to the existing collegium system of appointing judges in India.
Composition of the NJAC
The NJAC comprised of six members: the Chief Justice of India as the Chairperson, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee. This composition aimed to make the process of judicial appointments more inclusive and transparent.
Procedure for selection
The NJAC Act laid down the procedure for selection and appointment of judges to the higher judiciary. It required the NJAC to recommend names of candidates on the basis of their ability, merit and other criteria of suitability. The recommendations would then be forwarded to the President, who would appoint the judges. This process aimed to make appointments more objective while still maintaining the independence of the judiciary.
Scope of review
The NJAC Act provided for a wider scope of review of recommendations made by the collegium. It allowed recommendations to be returned to the NJAC for reconsideration. The aim was to enable more scrutiny and accountability in the appointment process. However, critics argued this could undermine the independence of the judiciary.
Transparency
The NJAC Act sought to bring more transparency to the judicial appointments process. It required the NJAC to prepare a memorandum giving reasons for its recommendations. It also required the NJAC to publish names, particulars and other details of recommended candidates on its website. The objective was to make the process more accountable and open to public scrutiny.
In summary, the NJAC Act aimed to overhaul the existing collegium system by making the judicial appointment process more broad-based, transparent, accountable and objective. However, its provisions were struck down by the Supreme Court, which felt it could compromise the independence of the judiciary. The debate around judicial appointments reform remains ongoing.
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Composition of the NJAC
The NJAC consisted of six members – the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons.
Judicial Members
The Chief Justice of India acted as the Chairperson of the NJAC. Including the Chief Justice, two other senior judges of the Supreme Court were members. These judicial members were nominated based on their seniority in the Supreme Court.
Executive Members
The Union Minister of Law and Justice represented the executive branch of the government in the NJAC. As the minister responsible for the judiciary and justice system, their inclusion aimed to provide executive oversight over judicial appointments.
Eminent Persons
Two eminent persons, well-versed in the field of law, were also nominated as members. These members were nominated by a committee consisting of the Chief Justice, the Prime Minister and the Leader of Opposition in the Lok Sabha. The inclusion of eminent persons aimed to provide representation from civil society.
Veto Power
Any two members of the NJAC could veto a candidate’s nomination. However, the veto had to be accompanied by written reasons. The veto could be overruled only through a unanimous decision of the remaining members. This veto power accorded considerable influence to the non-judicial members over judicial appointments.
The composition of the NJAC was designed to ensure participation from multiple branches of government in judicial appointments. However, the inclusion of non-judicial members and the veto power accorded to them was seen by critics as impinging on the independence of the judiciary and leading to political interference in judicial appointments. The Supreme Court, in its decision to strike down the NJAC Act, also noted that the inclusion of the Law Minister could undermine judicial independence.
Overall, the composition of the NJAC reflected the intention to make judicial appointments more broad-based and transparent. But, its specific provisions raised concerns over compromising the independence of the judiciary – a key pillar of India’s democracy.
Functions of the NJAC
Appointment of Judges
A primary role of the NJAC is to appoint judges to the higher judiciary in India, including the Supreme Court and High Courts. The NJAC will recommend names of suitable candidates to the President, who will then appoint them as judges. This process aims to make judicial appointments more transparent and accountable compared to the collegium system where judges appointed themselves.
Determination of Seniority
The NJAC is also responsible for determining the seniority of judges in the higher judiciary. Seniority plays an important role in the higher judiciary as it influences a judge’s chance of elevation to the Supreme Court, as well as the allocation of cases. The NJAC will lay down principles for determining seniority to bring more objectivity and fairness to this process.
Transfer of Judges
Further, the NJAC has the power to recommend the transfer of judges between High Courts. This could help address the issue of vacancies in certain High Courts as well as enable the transfer of judges to courts where they are most needed based on their areas of expertise. However, safeguards need to be put in place to prevent the arbitrary transfer of judges, which could undermine judicial independence.
Other Functions
Additional functions of the NJAC include laying down guidelines for the evaluation of judges, recommending names for the appointment of Chief Justices and recommending the removal of judges. The NJAC thus has a range of responsibilities aimed at improving the overall functioning of the higher judiciary in India through a fair and transparent mechanism.
In summary, the NJAC has significant powers related to appointments, seniority, transfers, evaluation and removal of judges. However, its functioning needs to strike a balance between judicial accountability and independence. With the right safeguards and processes in place, the NJAC can help boost confidence in the higher judiciary by making it more transparent and merit-based.
Appointment Procedure Under the NJAC
Under the NJAC Act, the appointment of judges to the Supreme Court and High Courts will be made by the NJAC. The NJAC comprises of six members – the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People.
Selection of Candidates
The NJAC will lay down the procedure for selection of candidates for appointment as judges. Candidates will be shortlisted on the basis of an evaluation of judgements and a written examination. The written examination will assess analytical abilities and knowledge of law. Candidates will be interviewed by the NJAC to assess their personal attributes such as integrity, character, and ability to handle situations of conflict of interest.
Recommendation of Names
From the candidates who qualify the selection process, the NJAC will recommend names for appointment as judges. The names will be recommended on the basis of inter se merit determined through an evaluation of judgements, written examination and interview. The number of names to be recommended will be specified by the NJAC in consultation with the Chief Justice of India.
Appointment by the President
From the names recommended by the NJAC, the President will appoint judges to the Supreme Court and High Courts. The President is empowered to seek reconsideration of names recommended from the NJAC. However, if the NJAC reiterates the recommendation, the President will be bound to make the appointment.
Transparency
The selection and appointment process under the NJAC aims to bring transparency in the higher judiciary appointments. The shortlisting criteria and selection procedure will be made public. Unsuccessful candidates will be provided the reasons for not being selected. The NJAC will function in a transparent manner and hold public sittings. Its recommendations and reasons thereof will also be made public which can be challenged in the Supreme Court.
In summary, the NJAC Act establishes a fair and transparent procedure for appointment of judges to the higher judiciary. It balances independence of judiciary and accountability leading to a more responsive judiciary. However, there are apprehensions regarding excessive executive influence which needs to be addressed.
Issues and Concerns With the NJAC Act
The National Judicial Appointments Commission (NJAC) Act, passed in 2014, aimed to change the process of judicial appointments in India. While the act sought to make the appointment of judges more transparent and accountable, it raised several concerns.
A major issue was the threat to judicial independence. The NJAC gave politicians and the executive branch more control over judicial appointments, undermining the separation of powers. The act allowed the government to have a say in the elevation of judges to the Supreme Court and various high courts. This could influence judges to rule in favor of the government to gain promotions or extensions.
Another concern was the lack of diversity. The NJAC specified that appointments must reflect the diversity of India’s population in terms of religion, ethnicity, caste, and geography. However, the act failed to provide a framework to achieve this, risking unequal representation. Marginalized groups worried they may continue to face barriers entering the higher judiciary.
Furthermore, the NJAC act was seen as an attack on judicial primacy. For decades, the Supreme Court had the final say on judicial appointments through the collegium system. The NJAC transferred much of this power to the executive and legislative branches, raising fears of political interference in the judiciary.
In summary, while the goal of transparency and accountability in judicial selection was laudable, the NJAC act raised serious concerns over judicial independence, diversity, and primacy. The Supreme Court eventually struck down the act, calling it unconstitutional, and the collegium system continues today. Reforms are still needed to address issues of opacity and lack of diversity in the higher judiciary. A balanced alternative that maintains judicial independence while increasing transparency could help achieve this.
Supreme Court Ruling on NJAC’s Constitutionality
The Supreme Court of India ruled that the National Judicial Appointments Commission Act (NJAC) was unconstitutional in 2015. The court found that the NJAC undermined the independence of the judiciary, a basic feature of the Constitution.
The NJAC was intended to replace the collegium system of appointing judges. It gave politicians and civil society members equal say in judicial appointments. However, the court held that vesting such power in the executive violated the separation of powers doctrine. Allowing political actors influence over judicial appointments could compromise the independence of the judiciary.
The court further noted that the NJAC did not provide adequate safeguards to insulate the appointment process from political pressure and influence. For example, it lacked a requirement for judges to have a final say on appointments or a veto over candidates. The NJAC also lacked transparency provisions like a requirement to record discussions and reasons for appointment decisions.
In contrast, the collegium system, despite its flaws, upheld judicial independence. The collegium – comprising the Chief Justice of India and four senior-most judges – has the final authority on appointments to the higher judiciary. It is an in-house mechanism that keeps the appointment power within the judiciary. However, the collegium system has faced criticism over lack of transparency and accountability. There have also been calls for a new appointment mechanism that balances judicial independence and accountability.
The NJAC judgment highlights the delicate balance between judicial independence and accountability in a democratic system. Achieving the appropriate balance and harmony between the judiciary, executive and legislature is crucial for India’s constitutional democracy. The debate around an ideal appointment system for the higher judiciary is still evolving. Various stakeholders continue to explore alternative mechanisms that could replace the collegium system while upholding judicial independence.
Impact of the NJAC Act’s Repeal on Judicial Independence
The National Judicial Appointments Commission (NJAC) Act, which was passed in 2014 but repealed in 2015 by the Supreme Court, aimed to change the process of judicial appointments in India. Had it been implemented, the NJAC Act would have undermined the independence of the Indian judiciary.
The NJAC Act sought to replace the collegium system of judicial appointments with a commission comprising members from the executive and judiciary branches as well as eminent persons nominated by a committee. This change would have given the executive branch an upper hand in selecting judges. Some experts argue that judiciary independence could have been compromised as the government may influence the appointment of judges who are aligned with their political ideologies.
On the other hand, supporters of the NJAC Act claim that the collegium system lacks transparency and accountability. The NJAC would have introduced a fair and transparent process for judicial appointments. However, critics argue that there were no proper mechanisms proposed to ensure that the selection would be fair and transparent. There were also concerns that the NJAC may be subject to political pressure in the appointment of judges.
The repeal of the NJAC Act upheld the independence of the Indian judiciary. The Supreme Court ruled that the NJAC Act threatens the independence of the judiciary by giving the executive branch a dominant role in judicial appointments. While changes may be needed to make the collegium system more transparent, any alternative mechanism should not compromise the independence of the judiciary which is a basic feature of the Constitution.
Judicial independence is essential for an impartial justice system and vibrant democracy. Despite its imperfections, the collegium system has largely upheld the independence of the Indian judiciary. The NJAC experience highlights the need to find the right balance between judicial independence and accountability in reforms related to judicial appointments. With proper checks and balances, a new system can make the process more transparent and accountable without threatening judicial independence.
FAQs on the National Judicial Appointments Commission Act
The National Judicial Appointments Commission Act (NJAC) was passed in 2014 to change the process of appointing judges to the higher judiciary in India. However, the Act was struck down as unconstitutional by the Supreme Court in 2015. If you have questions about the NJAC, here are some frequently asked questions and answers:
The objective of the NJAC was to make the judicial appointments process more transparent and accountable. Prior to the NJAC, judges were appointed by a collegium system consisting of the Chief Justice of India and four senior-most judges of the Supreme Court. The NJAC aimed to broaden the appointments body by including representatives from the executive and judiciary branches of government, as well as public figures.
The Supreme Court found that the NJAC undermined the independence of the judiciary. By giving the executive branch a role in judicial appointments, the Court felt it could influence the appointment of judges to get favorable outcomes in cases. The Court also said the NJAC did not provide a veto for the Chief Justice in the appointment of judges to the Supreme Court.
After the NJAC was struck down, the collegium system was revived for appointments to the higher judiciary. However, the collegium system has also received criticism for lack of transparency and executive oversight. There have been calls for a new body for judicial appointments that addresses the shortcomings of both the NJAC and collegium systems while preserving judicial independence.
Yes, there is a possibility of another judicial appointments commission if concerns about the collegium system persist. Any new system would need to pass muster with the Supreme Court to avoid the fate of the NJAC. Several alternatives have been proposed, such as a judicial appointments commission with a majority of judges and limited executive participation. There have also been calls for public feedback in the appointments process to make it more transparent and accountable to citizens.
Conclusion
As you have seen, the National Judicial Appointments Commission Act was a controversial reform that aimed to change the process for appointing judges to higher courts in India. While the act proposed including members of civil society in judicial appointments to promote transparency, concerns were raised about protecting judicial independence and separation of powers. The act’s repeal just over a year after its passage underscores the complex debates around reforming systems for judicial appointments. Moving forward, you may reflect on balancing ideals like transparency, independence, and democratic representation when evaluating systems for selecting independent judges. Carefully considering various viewpoints and core principles can promote thoughtful discourse on this important issue.
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