The National Judicial Appointments Commission Bill, introduced in Lok Sabha in August 2014 by the then minister of Law and Justice, Mr. Ravi Shankar Prasad got the President's assent in December and now has become the National Judicial Appointments Commission Act effecting a constitutional amendment (99th amendment act). It has added an article 124 A to the Constitution which deals with the composition and the procedure for appointment and transfer of judges.
Before this law was passed, judicial appointments to the Supreme Courts and the High Courts were made by the President of India who was to do so in consultation with the Chief Justice of India, who himself would consult a collegium of the four seniormost judges of the Supreme Court (as opined by the SC in third judges case,1998). Even if two judges gave an adverse opinion regarding an appointment, the recommendation would not be sent to the government.
With the passing of the NJAC bill, the government has made key changes in the method of appointment of judges of Supreme Court and high Courts. The Act provides for the establishment of a National Judicial Appointments Commission which will recommend names to the President for judicial appointments to the Supreme Court and the High Courts. The NJAC will comprise of the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Law Minister and two eminent experts. The two experts are to be selected by the Chief Justice, the Prime Minister and the leader of Opposition and one of them must be from a scheduled caste, scheduled tribe, minority community or a woman. As per normal procedure, the senior-most judge of the Supreme Court will be chosen as the Chief Justice of India and all other appointments will be made as per the recommendations by the NJAC. If any two members of the NJAC disagree on a nomination, his/her recommendation will not be made to the President. The President has also been given powers to ask for the reconsideration of the recommendations made by the NJAC, but if NJAC makes a unanimous decision recommendation after such reconsideration, President must make the appointment accordingly.
The bill has faced strong criticism from several sections, some even calling it unconstitutional as it encroaches upon the power of the judiciary in matters of appointment. There is growing concern that with the inclusion of the Union Minister of Law and Justice in the Commission, the government may try to influence the decisions of the NJAC so as to appoint loyalists as judges to the apex court. Many are of the opinion that the judiciary should be independent of the executive, which has been an important feature of the judiciary of India and the establishment of the NJAC will be a stark violation of the principles on which the Supreme Court of India has been established.
On careful examination of the law, one realizes that the position of the courts are not in danger.
First of all, the system which existed was not too different from the one proposed now. With the inclusion of the Union Law Minister and two experts in the commission, the law has provided for the representation of the 'government' as well as the 'people' in the body. Since the previous procedure of appointments was proposed to curtail the absolute power of the Chief Justice of India in making recommendations, this comes as a welcome move as it curtails the absolute power of the judges (including the CJI) and takes in consideration the views and opinions of the Executive as well as experts. The law has also provided that the two experts should not be selected arbitrarily by the government but will be selected by the PM, the leader of Opposition and the CJI thus nullifying the argument that the government could create its own lobby within the commission.
The matter is still being discussed and debated upon, in the public domain, while the Supreme Court has constituted a bench to decide upon the 'constitutionality' of the law. Watch this space for more.
Before this law was passed, judicial appointments to the Supreme Courts and the High Courts were made by the President of India who was to do so in consultation with the Chief Justice of India, who himself would consult a collegium of the four seniormost judges of the Supreme Court (as opined by the SC in third judges case,1998). Even if two judges gave an adverse opinion regarding an appointment, the recommendation would not be sent to the government.
With the passing of the NJAC bill, the government has made key changes in the method of appointment of judges of Supreme Court and high Courts. The Act provides for the establishment of a National Judicial Appointments Commission which will recommend names to the President for judicial appointments to the Supreme Court and the High Courts. The NJAC will comprise of the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Law Minister and two eminent experts. The two experts are to be selected by the Chief Justice, the Prime Minister and the leader of Opposition and one of them must be from a scheduled caste, scheduled tribe, minority community or a woman. As per normal procedure, the senior-most judge of the Supreme Court will be chosen as the Chief Justice of India and all other appointments will be made as per the recommendations by the NJAC. If any two members of the NJAC disagree on a nomination, his/her recommendation will not be made to the President. The President has also been given powers to ask for the reconsideration of the recommendations made by the NJAC, but if NJAC makes a unanimous decision recommendation after such reconsideration, President must make the appointment accordingly.
The bill has faced strong criticism from several sections, some even calling it unconstitutional as it encroaches upon the power of the judiciary in matters of appointment. There is growing concern that with the inclusion of the Union Minister of Law and Justice in the Commission, the government may try to influence the decisions of the NJAC so as to appoint loyalists as judges to the apex court. Many are of the opinion that the judiciary should be independent of the executive, which has been an important feature of the judiciary of India and the establishment of the NJAC will be a stark violation of the principles on which the Supreme Court of India has been established.
On careful examination of the law, one realizes that the position of the courts are not in danger.
First of all, the system which existed was not too different from the one proposed now. With the inclusion of the Union Law Minister and two experts in the commission, the law has provided for the representation of the 'government' as well as the 'people' in the body. Since the previous procedure of appointments was proposed to curtail the absolute power of the Chief Justice of India in making recommendations, this comes as a welcome move as it curtails the absolute power of the judges (including the CJI) and takes in consideration the views and opinions of the Executive as well as experts. The law has also provided that the two experts should not be selected arbitrarily by the government but will be selected by the PM, the leader of Opposition and the CJI thus nullifying the argument that the government could create its own lobby within the commission.
The matter is still being discussed and debated upon, in the public domain, while the Supreme Court has constituted a bench to decide upon the 'constitutionality' of the law. Watch this space for more.
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