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Introduction
National Judicial Appointment Commission
National Judicial Appointments Commission (NJAC) is a proposed body responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission is established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabhaon 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC replaces the collegiumsystem for the appointment of judges as mandated in the existing pre-amended constitution by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of theNational Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the Hon’blePresident of India Pranab Mukherjee on 31 December 2014.The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.
The Contextual
Since 1950, judges have been appointed by the government in “consultation” with the Chief Justice of India (CJI). For the first two decades, there was a near consensus between the government of the day and the CJI. In 1981, the question arose whether “Consultation” referredto in Articles 124(2) and 217(1) with the CJI meant “concurrence” in which case the recommendations of the judiciary would be binding on the government. In the S. P. Gupta case decided in 1981, the Court held by a majority that the recommendations of the CJI were not binding on the government. Once this decision was rendered the government obtained a licence todisregard the recommendations of the judiciary. While this was a literal interpretation of the word“consultation”, it had devastating political consequences. It appears the recommendation made bythe CJI was not accepted as an invariable rule; change was on the cards.
The prime initiators for change in the method of appointment of judges have always been the lawyers. In hindsight it seems almost logical since it is they who end up as Chief Justices of the High Courts and of the Supreme Court. Judges of these courts are invariably sons of former judges or sons of lawyers practising at the bar. The debate on who should appoint judges hasnever really been thrown open to the public and we as a country do not have an articulated position on this issue. In Court we are confronted with a binary position, either independence of the judiciary or executive control. This process of reasoning is inherent to the legal method andno nuances are allowed to emerge nor options considered. In 1993, once again, the issue wastaken to the Supreme Court and the judgment in the S P Gupta case was overruled. This time a bench of nine judges held that a collegiate opinion of a collective of judges is binding on the government. The majority gave the conclusions regarding appointments; wherein, all the constitutional functionaries must perform this duty collectively with a view to reach an agreed decision so that the occasion of primacy does not arise. In case of Supreme Court, the proposal is
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to be initiated by the CJI and in the case of a high court by the chief justice of that high court. In the event of conflict of opinion, the view of the CJI has primacy. No appointment of any judge to the Supreme Court or any high court can be made unless it is in conformity with the opinion of the CJI. In exceptional cases, for stated strong and cogent reasons, disclosed to the CJI, indicating that the recommendation is not suitable for appointment, the appointment recommended by the CJI may not be made. But in case the CJI reiterates his recommendation then, the appointment should be made in accordance with his recommendation. The senior-most judge of the Supreme Court should be appointed as CJI, if considered fit to hold the office. The judgment establishedthe primacy of the judiciary in the matter of making appointments. It is worthy of mention thatthe previous NDA government was in power at that time when the reference was made and the then Attorney General for India appeared in the case and argued that the primacy of the Chief Justice over the execution must be maintained.
National Judicial Appointment Commission
The Constitution was amended and the 99th Amendment was inserted into the Constitution of India to give constitutional status to National Judicial Appointment Commission. The National Judicial Appointments Commission Act, 2014 was also enacted with the constitutional amendment to completely change the whole procedure for the appointment of judges in High Court and the Supreme Court. After the two Acts come into force a judge would be appointed on the recommendation of the National Judicial Appointments Commission. The National Judicial Appointments Commission consists of the Chief Justice of India, two senior most judges of the Supreme Court next to the Chief Justice of India, the Union Law Minister, two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India, the Leader of Opposition in Lok Sabha (in case there is no such leader the leader of the single largest opposition party). The Commission is entrusted to recommend persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justice of High Courts and Judges of High Courts and to recommend transfer of Chief Justice and judges of High Courts from one High Court to another. The procedure to be followed by the National Judicial Appointments Commission is that the Central Government shall make a reference to the National Judicial Appointments Commission six months prior to the date of a vacancy arising out of completion of the term of a judge of the Supreme Court or a High Court. The senior-most judge of the Supreme Court shall be recommended for appointment as the Chief Justice of India. A person who is considered fit on the basis of his ability, merit and suitability shall be recommended for appointment as a Supreme Court judge. A judge of a High Court shall be recommended for appointment as Chief Justice after considering his inter-se seniority, ability, merit and suitability. The Commission may select persons who are eligible under Article 217 (2) and forward the nameof such persons to the Chief Justice of the High Court for his views but before sending the names and views of the Governor and the Chief Justice shall consult two senior-most judges of High Court. The commission shall before making a recommendation seek in writing the views of the Governor and the Chief Minister of the State. If two members are not in favour of a person his name shall not be recommended.
