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To review Collegium system and revive NJAC

  • Published
    18th Nov, 2022
Context

In a petition filed arguing the revival of the National Judicial Appointment Commission (NJAC), the Chief Justice of India agreed to reconsider the collegium system of judicial appointments to the Supreme Court and the High Courts.

About

What is the Collegium system?

  • A collegium is a group consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court that decides the appointment of judges to the apex court.

How does it work?

  • The Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.
  • It comprises of:

Appointment of Supreme Court Judge

Appointment of High Court Judge

Transfer of High Court Judge

4 senior-most judges of the Supreme court

2 senior-most judges of the Supreme court

4 senior-most judges of the Supreme court along with the judges of the two High Courts in concern.

  • Names recommended for appointment by a High Court collegiumreach the government only after approval by the CJI and the Supreme Court collegium.
  • Sometimes the government delays making the appointments, especially in cases where the government is perceived to be unhappy with one or more judges recommended for appointment by the collegium.

Evolution of the System:

  • The collegium system evolved out of a series of judgments of the Supreme Court that are called the “Judges Cases”.
    • The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these Judge's Cases.
  • First Judges Case (1981): It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998): SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Reforms introduced:

The attempt made to modify the appointment procedure to make it more transparent and consensus-based was done by a national Judicial Appointments Commission (NJAC) which was provided under Article 124A in the constitution.

However, through Ninety-ninth Amendment Act, 2014NJAC was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Need to reconsider the Collegium system:

  • Issues of Transparency: The system is non-transparent since it does not involve any official mechanism or secretariat.
  • No definite Eligibility: it is seen as a closed-door affair with any prescribed norms regarding eligibility criteria, or even the selection procedure.
  • Lack of Consensus and Consultation: There is no public knowledge of how and when a collegium meets, and how it takes its decisions. There are no official minutes of collegium proceedings.

 The National Judicial Appointment Commission:

  • Appointment of CJI: It provided for the CJI's appointment along with those of the judges for the Supreme Court and HC's Chief Justice judges.
  • The commission shall comprise the following members;
    • The Chief Justice of India (ex-officio, Chairperson of the NJAC)
    • Two senior Supreme Court judges (ex-officio)
    • The Union Minister of Law and Justice (ex-officio)
    • Two eminent persons who are to be nominated by a committee comprising of the CJI, the Prime Minister of India, and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in Lok Sabha).
    • One person to be from the Scheduled Castes/Scheduled Tribes/OBC/Minority/Woman.
  • Term of the service: No re-nomination after having served a term of 3 years.

What are the arguments in support of NJAC?

  • NJAC Act ends the opaque mechanism and ensures transparency and accountability within the collegium system.
  • NJAC Act brings integrity between the judiciary and executive and makes it all-inclusive.
  • Involvement of the Government and people from other backgrounds can make the appointment more diverse and with a real perspective.
  • Issues of Minorities, SCs, STs, and Women will also be given preference. It can also lead to more Women Judges in the higher decision-making system.
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