NJAC and The COLLEGIUM 

National Judicial Appointments Commission (NJAC) was a proposed body that would have been responsible for the recruitment, appointment and transfer of judges and legal specialists in India. The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.

The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat 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 the National 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 President of India Pranab Mukherjee on 31 December 2014.

The NJAC Act and the Constitutional Amendment Act came into force on 13 April 2015. On 16 October 2015, the Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner. Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.

Constitution of NJAC: A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition: As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:

Chief Justice of India (Chairperson, ex officio)

Two other of senior judges of the Supreme Court next to the Chief Justice of India - ex officio

The Union Minister of Law and Justice, ex-officio

Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

Chief Justice of India,

Prime Minister of India, and

Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Functions of the Commission:  As per the amended constitution, the functions of the Commission would have included the following: Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts. Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. Ensuring that the persons recommended are of the ability, merit and other criteria mentioned in the regulations related to the act.

Procedures to be followed by the Commission: The National Judicial Appointments Commission Bill, 2014, had laid down the following procedures for the selection of the Judges of the higher judiciary.

Procedure for selection of Supreme Court judges

Chief Justice of India: The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he/she is considered fit to hold the office. However, this must be according to the knowledge one possesses rather than the age.

Supreme Court judges: The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations. The Commission shall not recommend a person for an appointment if any two of its members do not agree to such recommendation.

Procedure for selection of High Courts judges

Chief Justices of High Courts: The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other High Court judges:

The Commission shall seek nominations from the Chief Justice of the concerned High Court for appointments of High Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior-most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

The challenge to the constitutionality

The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer associations and groups before the Supreme Court of India through public interest litigation writ petitions. Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging the validity of NJAC on the ground that the challenge was premature as the constitutional amendment and the NJAC Act had not been notified then. After the fresh challenge in 2015 after the acts were notified, a three-judge bench of the Supreme Court referred the matter to a Constitution Bench.

SC declares NJAC unconstitutional

In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014 meant to replace the two-decade-old collegium system of appointing judges in the higher judiciary. The judgement was hailed by lawyers Prashant Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jayaprakash Narayana opposed it.

Support for NJAC: The only one of the five-judge bench of the Supreme Court led by Khehar, which ruled against NJAC, who opposed the decision was Jasti Chelameswar. argued that the proposed composition of the NJAC would not be a constitutional issue and that it could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”

Later developments: On 3 November 2015 the Supreme Court upheld that it is open to bringing greater transparency in the collegium system within the following existing four parameters, with opinions from both the parties(petitioners who challenged the NJAC and the government).

How the collegium can be made transparent

The fixing of the eligibility criteria for a person to be considered suitable for appointment as a judge A process to receive and deal with complaints against judges without compromising on judicial independence Debate on whether a separate secretariat is required, and if so, its functioning, composition and powers On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court that the central government will not prepare a draft memorandum for judicial appointments contrary to committed earlier and suggested the same to be done through a judgement.

What is the Collegium system?

The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)

The Central government has criticised it saying it has created an imperium in Imperio (empire within an empire) within the Supreme Court. The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”

How and when was the NJAC established:The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014, and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force on April 13, 2015.

Who will be in the NJAC:It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha and are not eligible for re-nomination.