NATIONAL JUDICIAL APPOINTMENT COMMISSIONfor ENGLISHis a bona
fide work carried out by SANJEEV YADAV of B.A.L.L.B Ist year of Army
Institute Of Law, Mohali for fullfillment of Bachelor of Art course of Army
Institute Of Law, Mohali.
ACKNOWLEDGEMENTS
A project is a golden oppurtunity for learning and
self development. I consider myself very lucky and
honoured to have so many wonderful people who
lead me through, in completion of this project.
My grateful thanks to my seniors, who in spite of
being extraordinarily busy with there work, took
time out to hear , guide and keep me on the correct
path. I am very thankful to them for their support.
Collegium System – The Unveiled Darkness
The basis for appointment of Judges has always remained as the most
controversial and confused job. Since Independence of our country, several
attempts have been made to emerge out some single efficacious method in
this regard. Collegium system has been functioning with its full force in
respect of appointments to judicial offices. In order to change this stale
prevailing system, in 2014 the Government came up with a Commission called
as National Judicial Appointment Commission (NJAC) which was to play a
frozen role in the appointment of Judges of Supreme Court and High Court for
this matter National Judicial Appointment Commission Act has been enforced.
Both the bills were overwhelmingly passed by both the Houses of the
Parliament without a single opposing vote. The perception of nepotism,
opacity and judicial hegemony in appointments was pursued to be undone by
a bipartisan NJAC. However, Justice Krishna Iyer also has rightly accepted that
“Judges-Judicial Reforms in Indian Context” concerning accountability of
judiciary thereby demanding on a serious scrutiny through some commission
for the appointment of Judges. Many a times before passing of this NJAC,
efforts have been put in order to form some Commission to which, duty of
appointment of Judges of higher authority, can be given. Nevertheless, by
striking down the NJAC and 99th Constitution (Amendment) Act as
unconstitutional and void, the Supreme Court has, again, focused public
attention on the procedure of appointment of Judges to the higher judiciary.
INTRODUCTION:
Collegium system is a system of appointing and transferring of judges, that
has developed through various judgments given by the Supreme court of
India, which is not influenced by any Act or provision mentioned in the
Constitution. The collegium system is also referred to as “Judge – selecting –
judge”. The collegium system was brought in by the 99th Constitutional
amendment by striking down the National Judicial Appointment Commission
Act (NJAC) which was declared as void and unconstitutional by the court. The
Article 124(1) of the Constitution lays down provisions for the appointment of
judges by the recommendation of Chief Justice of India. The appointment of
judges for Supreme Court and High Court is done by the collegium which is
headed by the Chief Justice of India and consists of four other senior judges
with the approval of the President. The constitution gives the president the
power to appoint judges for the High Court and Supreme Court under Article
124(2) and 217. The president should undergo a consultation process with
other such judges while appointing the new judges. The government’s role is
finite and can only come into action when the names are given with the assent
of collegium of Supreme Court and Chief Justice of India. It’s role is to conduct
an inquiry by the Intelligence Bureau, if a lawyer can be raised as a judge in a
court.
Flaws in the Collegium System:
The current process adopted by the collegium of judges is beset with its own
set of issues of non-transparency and non-accountability apart from excluding
Executive completely in the collaborative and consultative exercise for
employment of judges to Bench of higher judiciary. Since its deep-rooted
deficiencies in the collegium, as many as approximately 275 posts of judges in
several High Courts are kept vacant, which have uninterrupted bearing upon
justice delivery system and thereby influencing the institutional credibility of
judiciary. The working of the collegium has marked the total breakdown of the
inter-institutional system provided in Article 124 and Article 217 of the
Constitution of India. 9 This system incorporates de facto judicial supremacy
over appointments. In spite of the fact that the executive must formally affirm
the appointment, the role is limited as its objections can be overridden by the
collegium, whose conclusion is determinative in practice. The marginal role of
the executive deprives the possibility of an inter-institutional check and
balance on the judiciary and also paves way for the public questioning of the
executive in relevance to judicial appointments pointless as the executive
inevitably pleads helplessness. The collegium system has been criticised on
several grounds. Lastly, one other major disadvantage of the collegium system
that has been observed over the years recently is that almost thirty per cent
seats in different High Courts of the country remain empty due to inefficient
working of the collegium.
Conclusion:
The National Judicial Appointment Commission (NJAC) Act and the
Constitutional (121st Amendment) Act have been passed in the Parliament
with the approval of majority. As most of the states have ratified this Act, it
has become a statute which would soon come in to force. The Collegium
System was afflicted by problems like lack of transparency, accountability and
more than anything else; the basis on which judges were chosen was unclear.
The NJAC would be useful in increasing the transparency in the judicial
appointments due to the presence of Law Minister and two eminent persons
in this commission. The Act leaves a lot to the regulations to be done by the
Commission and is heavily inflated of words and phrases like “other criteria”,
“Commission can, by regulations, specify such other procedure”, “any other
matter” etc. which keeps several aspects of the appointment process subject
to the manipulation by the Commission and Union Government. The Act thus,
needs re-evaluation in the Composition of commission, procedure and the
criteria for appointments. The advantages and the shortcomings of this new
system though would conclusively come out only when it comes in operation.
Although, this step may prove insufficient in the short run but it is a step in
the correct direction
