news Wednesday, July 08, 2015 - 05:30
“Does any MP understand what this NJAC is all about?” asked senior advocate in the Supreme Court and Rajya Sabha MP Ram Jethmalani in an interview with The Times of India on Tuesday. The firebrand lawyer was referring to the fact that the National Judicial Appointments Commission Bill (NJAC) was passed unanimously by both houses of Parliament on successive days in the middle of August last year. But what is the NJAC and why the furore over the judiciary now? The NJAC is the system which now recommends persons for appointment to the office of the Chief Justice of India (CJI), other judges of the Supreme Court and the CJ for High Courts and its other judges.  Introduced in the Lok Sabha as a bill on August 11, 2014 by the law minister Ravi Shankar Prasad the NJAC replaced the collegium system of appointing judges which had been in place since 1993. After both houses of Parliament passed the Bill, it was given the nod of approval by President Pranab Mukherjee on the last day of the previous year. The bill became an Act and came into force from April 13 this year. The NJAC has come under fire from quarters for undermining the independence of the judiciary with the executive having a greater say, but how did the previous system fare? Why the collegium system which ensured a totally independent judiciary got flak: The collegium system that the NJAC replaces had come under flak after several eminent advocates said that the appointments to judges involved a lot of cronyism in the system. The argument made against the collegium system was that it made the judiciary a tad too independent. The appointment of judges was made by the four senior-most judges of the SC and three members of concerned HC (in matters pertaining to the High Court) including the Chief Justice of the HC. The collegium system did not also have a place in the constitution itself. Over the course of the verdicts in three different cases spread across seventeen years the principle of judicial independence of the courts was evolved as one which faced no interference from the legislature or the executive. “There was a time, especially in the early years of collegium system, when the chief justice used to have wider consultation by seeking views of important members of the bar about a person being considered for appointment as a judge to the Supreme Court or high courts. That stopped long ago,” senior advocate Fali Nariman was quoted as saying. On June 17 this year, a bench of judges of the apex court in the land said that while the collegium system itself was not flawed, its implementation left much to be desired. While listening to a raft of petitions challenging the validity of the NJAC, the five member SC bench said: “So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad.” Some judges being preferred over others hinted at a lack of transparency in appointments. These were the charges levelled against it by several legal eagles. The NJAC changed that. Why the NJAC came in and why the uproar: “No bill has been passed with such unanimity except the bill for increase of MPs' salaries,” a SC bench of judges had said about the NJAC bill. Both systems have their detractors with very contrarian points of view. While Nariman has earlier been quoted as not being too much of a fan of the collegium system itself, he doesn’t seem to have taken to the NJAC too well either. “This will severely undermine judicial independence,” he has been quoted as saying. The qualm that persists with the NJAC is that the judiciary is not entirely independent now. The appointment of judges will now take place by a commission which consists of six members. Two senior judges of the SC along with the CJI will represent the judiciary, while the Union Law Minister along with two eminent persons makes up the rest of the numbers. The selection process of the “eminent persons” has raised eyebrows in legal circles as the duo will be selected by a committee comprising the CJI, PM and the leader of Opposition in the Lok Sabha (or leader of the single largest opposition party in the House, the Congress in the present scenario). Out of the two eminent persons, one will be either an SC/ST/OBC/minority status/woman. What is critical though is that the system allows for two members of the commission to veto an appointment in any case. Legal experts have questioned the system, making the point that an appointment could be negated without the judiciary’s consent, which would encroach on its independence. Who is considered eminent has also been up for debate, with the SC Bar Association president and senior advocate Dushyant Dave arguing against the presence of lawyers or representatives from the Bar Council of India as eminent persons on the commission. “If that is so, then all the accused in the 2G spectrum scam too are eminent persons and could be eligible to be chosen as members of the NJAC as they are innocent till pronounced guilty,” Jethmalani had said.