The apex court has said that the NJAC will affect the independence of the judiciary.

SC chooses collegium over NJAC but what was the debate all about ExplainedImage source: Legaleagle86, via Wikimedia Commons
news Explainer Friday, October 16, 2015 - 10:57

In what could be a precursor to a full-blown collision between the legislature and the judiciary, the Supreme Court has ruled that the National Judicial Appointments Commission (NJAC) is unconstitutional.

The Supreme Court on Friday said that the collegium system of appointing judges will continue. The apex court has said that the NJAC will affect the independence of the judiciary.

A five-judge constitutional bench of the SC has said that the 99th constitutional amendment brought by the Govt. is unconstitutional.

What is the collegium system and why did it get flak?

The collegium system that the NJAC replaced for some time had come under flak after several eminent advocates said that the appointments of 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 the concerned HC (in matters pertaining to the High Court) including the Chief Justice of India.

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 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 pointed to a lack of transparency in appointments. These were the charges levelled against it by several legal eagles.

What is the NJAC?

The NJAC is a system which 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 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 December 31, 2014. The bill became an Act and came into force on April 13 this year.The NJAC has come under fire from several quarters for undermining the independence of the judiciary with the executive having a greater say. 

How was NJAC supposed to work?

The appointment of judges was to take place by a commission which consists of six members. Two senior judges of the SC along with the CJI were to represent the judiciary, while the Union Law Minister along with two eminent persons made up the rest of the numbers.

The selection process of the “eminent persons” had raised eyebrows in legal circles as the duo were meant to be selected by a committee comprising the CJI, PM and the leader of the 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 would 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.