COLLEGIUM VS NJAC
1. Context
The Supreme Court and the Centre are at odds over how judges should be appointed in the higher judiciary. In recent, the government has reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the apex court to defend the present Collegium system. Union Minister for Law and Justice Kiren Rijiju reignited the debate at the beginning of November when he commented that the Collegium system of appointments was “opaque” and needed to be reconsidered. His sentiment was echoed shortly after by Vice President and Rajya Sabha Chairman Jagdeep Dhankar in Parliament on December 7, when he remarked that it was “never too late to reflect” on the NJAC.
2. Collegium System
- The Collegium system is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
- Under the system, the Chief Justice of India along with four senior-most Supreme Court judges recommend appointments and transfers of judges.
- A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior-most judges of that court.
- In this system, the government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
- The government can also raise objections and seek clarifications regarding the Collegium’s choices, but, if the Collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them to the post.
3. Evolution of Collegium System
The system evolved in the three Judge's cases:
- In the First Judges case, the court held that the consultation with the CJI should be "full and effective".
- The Second Judges Case introduced the collegium system in 1993, as they ordered the CJI to consult a collegium of his two senior judges in the apex court on judicial appointments, such a "collective opinion" of the collegium would have primacy over the government.
- The Third Judges case in 1998, expanded the judicial collegium to its present composition of the CJI and four of its senior-most judges.
4. Constitutional Provisions for Appointment of Judges
Article 124(2)
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
Article 217
Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years.
5. Procedure for replacement of Collegium System
- Replacing the Collegium system calls for a Constitutional Amendment Bill.
- It requires a majority of not less than two-thirds of MPs (Members of Parliament) present and voting in Lok Sabha as well as Rajya Sabha.
- It also needs the ratification of legislatures of not less than one-half of the states.
6. What are the concerns associated with the Collegium system?
- Constitutional Status: The Collegium is not prescribed in the Constitution. Article 124 mentions consultation, which the SC interpreted as ‘concurrence’ in Second Judges Case (1993). During the hearing against the NJAC, the then SC Bar President had argued that the Constituent Assembly had considered a proposal for making Judges’ appointment ‘in concurrence’ with the CJI but had eventually rejected it.
- Transparency: There is no official procedure for selection or any written manual for the functioning of the Collegium. The parameters considered for selection (or rejection) are not available in the public domain.
- Accountability: The selection of Judges by the Judges is considered undemocratic. Judges are not accountable to the people or any other organ of the State (Legislature or Executive). It can add an element of arbitrariness in functioning.
- Criticism by Judges: Many retired Judges have criticized the working of the Collegium, especially the lack of transparency. Several controversial appointments have been made despite objections by the member-Judges of the Collegium.
- No Checks: There are no checks on the process. Nor has there been any review regarding the effectiveness of the process. Critics of the system argue the phenomena of ‘Uncle Judges’ wherein near relatives, kith, and kin of sitting Judges are appointed to the higher judiciary leading to nepotism. Law Commission in its 230th Report (2012) recommended that that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court. The absence of transparency, accountability, and external checks creates space for subjectivity and individual bias in appointments. In some cases, the principle of seniority has been ignored.
- No Reforms: The Supreme Court did not amend the contentious provisions of the NJAC Act or added safeguards to the Act. Instead, it struck down the whole Act. The Supreme Court reverted to the old Collegium System. However, the Court did not take any steps to address the concerns associated with the Collegium System.
7. What is National Judicial Appointments Commission (NJAC)
- The Constitution (99th Amendment) Act, which established the NJAC and the NJAC Act, was passed by Parliament in 2014 to set up a commission for appointing judges,
replacing the Collegium system. - This would essentially increase the government’s role in the appointment of judges.
- The laws were repealed in October 2015 after the Supreme Court struck them down.
7.1 Composition of NJAC
- The Chief Justice of India as the ex officio Chairperson.
- Two senior-most Supreme Court Judges as ex officio members.
- The Union Minister of Law and Justice as ex officio members.
- Two eminent persons from civil society (one of whom would be nominated by a committee consisting of the CJI, Prime Minster, and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.
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For Prelims: Collegium system, National Judicial Appointments Commission (NJAC), Supreme court, High court, Intelligence Bureau (IB), First Judges case, Second Judges Case, Third Judges Case, Article 124(2), Article 217, Law Commission, and 99th Constitutional Amendment Act.
For Mains: 1. What are the two systems of the appointment of Judges that has triggered the fresh debate on the Judicial system in India? (250 Words).
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Previous year Question
1. With reference to the Indian judiciary, consider the following statements: (UPSC 2021)
1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
2. A High Court in India has the power to review its own judgment as the Supreme Court does.
Which of the statements given above is/are correct?
A. 1 only
B. 2 only
C. Both 1 and 2
D. Neither 1 nor 2
Answer: A
2. In India, Judicial Review implies (UPSC 2017)
A. the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders
B. the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures
C. the power of the Judiciary to review all the legislative enactments before they are assented to by the President
D. the power of the Judiciary to review its own judgments given earlier in similar or different cases
Answer: A
3. Consider the following statements:
1. The motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.
2. The Constitution of India defines and gives details of what constitutes 'incapacity and proved misbehavior' of the Judges of the Supreme Court of India
3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, of 1968.
4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of the total membership of that House and by not less than two-thirds of total members of that House present and voting.
Which of the statements given above is/are correct?
A. 1 and 2
B. 3 only
C. 3 and 4 only
D. 1, 3 and 4
Answer: C
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Source: The Indian Express
