New Delhi : The long standing collegium system of appointing judges to the high court and the Supreme Court was scrapped on Monday as the government notified the National Judicial Appointments Commission (NJAC) Act 2014 and the accompanying constitutional amendment. The provisions of this Act will how decide how judges are chosen.
Incidentally, this decision has come just two days before a bench of the Supreme Court is to hear the petitions challenging the constitutional validity of this new law as well as its provisions. The move is likely to be seen in some quarters as confrontationist.
Interestingly, on the day the collegium system was scrapped, the government also announced the appointment of a number of additional judges to the High Courts of Kerala and Allahabad.
If the aforesaid Act withstands judicial scrutiny, then the process of appointing judges would also have the participation of non-judges. So, far the process was the exclusive domain of the judges. The notification issued on Monday said judges will be chosen by the National Judicial Appointments Commission — a team of six members that includes the Chief Justice of India, the two most senior judges of the Supreme Court, two eminent persons, and the Law Minister. The two eminent Indians will be chosen in turn by the Chief Justice, the PM and the leader of the largest opposition party in the Lok Sabha.
With a view to ensuring that the composition of the NJAC is inclusive, there is a proviso that one of the eminent persons shall be nominated from amongst persons belonging to the scheduled castes, the scheduled tribes, other backward classes, minorities or women.
One of the first legislations adopted by the Modi government, the NJAC had evoked bipartisan support in Parliament and was unanimously passed by the Lok Sabha as well as Rajya Sabha on August 13 and 14th, respectively. The statutory provision of the Act being ratified by the required number of state governments was then completed and after the presidential assent it was gazetted in December 2014.
Though the political fraternity is unanimous on this issue, the legal profession is split on the provisions of the new law. The Supreme Court Advocate-on-Record Association, NGO Change India, Centre for Public Interest Litigation (CPIL), Bar Association of India and others have moved the court challenging the NJAC route of appointment, even as the Supreme Court Bar Association has come out in the favour of the new system.
The petitions have argued that the Act is illegal since it was passed without first amending the Constitution. The Parliament had passed both the amendment and the Act simultaneously and the petitions said this amounted to invalidating the entire parliamentary process. They further claimed that it would tinker with the independence of the judiciary and the collective opinion of the three judges in the NJAC could anytime be vetoed by any two other members under the proposed law.
