National Judicial Appointments Commission

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National Judicial Appointments Commission, 2014
Emblem of India.svg
Parliament of India
  • An Act further to amend the Constitution of India.
Citation 99th Constitutional Amendment Act
Territorial extent India
Assented to15 August 2014
Commenced31 December 2014
Repealed16 October 2015
Struck down by
Supreme Court of India
Status: Struck down

The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments of India. The commission was established by amending the Constitution of India through the 99th 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. [1] [2] 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. [3] [4] [5] [6] 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. [7] The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015. [8] [9] [10] [11]

Contents

On 16 October 2015, the Constitution Bench of Supreme Court by a 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. [12] [13] 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. [14]

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:

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

Promotional Hierarchy

All India Judicial Service

The All India Judicial Service Officers are group 'A' gazetted officers. The promotional hierarchy of All India Judicial Service officers is mentioned below (Bottom to Top)

The promotional hierarchy of All India Legal Service (Group 'A' gazetted officers) in mentioned below (Bottom to Top)

There shall be one state regional legal service cadre per state of India. The promotional hierarchy of State Regional Legal Service (Group 'A' gazetted officers) is mentioned below (Bottom to Top)

All of the "Indian Legal Services" (Group 'A' gazetted officers) shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, statutory corporations, national apex bodies, public sector units, subsidiaries of public sector units, divisions of public sector units and all other government establishments under Government of India. The hierarchy of Indian Legal Services Officers in any of the central government establishments under the government of India shall be in the following manner.

The list of "Indian legal services" cadres shall be as follows:

There shall be as many "State Legal Services" cadres per state of India as decided by the state governments of India. "State Legal Service" Group 'B' gazetted officers shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, state apex bodies, statutory corporations, public sector units, subsidiaries of public sector units, divisions of public sector units etc. and all other government establishments under each of the state governments of India. The hierarchy of state legal service officers in any of the state government establishments under any of the state governments of India shall be in the following manner.

The list of "state legal services" cadres shall be as follows:

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

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 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 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.

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 [15] who saw it as an attempt by the government to compromise with the independence of the country's judiciary. Earlier in August 2014, Supreme Court had dismissed the 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. [16] 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. [17]

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 [18] [19] stating that the NJAC was a clear attempt to compromise independence of the judiciary, which went against the Constitution's basic structure. The judgement was hailed by activist lawyers like 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. [19] [20] [21]

Support for NJAC

The only one of the five-judge bench who opposed the majority decision was Jasti Chelameswar, who held 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.” [22]

The ruling party of India, Bharatiya Janata Party, which has been the main advocate of the NJAC, remains committed to it, citing instances of favouritism & nepotism within the collegium system, [23] the most notable case being the D. Y. Chandrachud, son of former CJI Y. V. Chandrachud being elevated by the collegium to be the next CJI.

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). [24] [25]

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. [26]

On December 8, 2022, Vice President Jagdeep Dhankhar, who had also practiced in the Supreme Court as an advocate, commented in his maiden speech to the Rajya Sabha, that the Court's decision to strike down NJAC by invoking the basic structure doctrine, was an unprecedented encroachment on the powers of the parliament by the judiciary, thereby violating the theory of separating powers. [27]

See also

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References

  1. "The Constitutions (Ninety-ninth) Amendment) Bill, 2014" (PDF). Govt, of India. Retrieved 15 August 2014.
  2. "Rajya Sabha Passes First NJAC Bill". Bloomberg TV India. Archived from the original on 19 August 2014.{{cite news}}: CS1 maint: unfit URL (link)
  3. "National Judicial Appointments Commission Bill, 2014" (PDF). Retrieved 15 August 2014.
  4. "National Judicial Appointments Commission Bill, 2014". PRS Legislative Research. Retrieved 15 August 2014.
  5. "The Constitution (121st Amendment) Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  6. "National Judicial Appointments Commission Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  7. "New judicial panel gets President's nod, collegium system ends". Times of India. PTI. 31 December 2014. Retrieved 1 January 2015.
  8. "National Judicial Appointments Commission – Overview". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  9. "Constitution (Ninety-ninth Amendment) Act, 2014" (PDF). Gazette of India. Retrieved 14 April 2015.
  10. "National Judicial Appointments Commission Act, 2014 (40 of 2014)" (PDF). Gazette of India. Retrieved 14 April 2015.
  11. "NOTIFIED: Constitution (Ninety-ninth Amend) Act, 2014 & National Judicial Appointments Commission Act, 2014". 1, Law Street. 13 April 2015. Retrieved 30 April 2015.
  12. "Supreme Court Advocates-on-Record - Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF 2015)" (PDF). Supreme Court of India. 16 October 2015. Retrieved 17 October 2015.
  13. "Supreme Court upholds collegium system of appointment of judges, rules NJAC unconstitutional". IBN Live. 16 October 2015.
  14. "NJAC Act unconstitutional, collegium system to continue: Apex Court". The Hindu Business Line. Press Trust of India. 16 October 2015. Retrieved 26 October 2018.
  15. "NJAC Act and 99th constitutional amendment faces challenge at Supreme Court; petitions by AoR Association and Senior Advocates". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  16. "NJAC premature challenge dismissed by the Supreme Court". 1, Law Street. 25 August 2014. Retrieved 3 June 2015.
  17. "Supreme Court refers NJAC Challenge to Constitution Bench – SCAORA v. UOI". 1, Law Street. 8 April 2015. Retrieved 3 June 2015.
  18. "SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]". 1, Law Street. 16 October 2015. Retrieved 21 October 2015.
  19. 1 2 "SC declares NJAC unconstitutional, upholds Collegium". THE HINDU . 16 October 2015.
  20. ""India has taken a step backwards by retaining the collegium" - Senior Advocate KK Venugopal". Bar & Bench. 20 October 2015. Archived from the original on 21 October 2015. Retrieved 21 October 2015.
  21. "From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act". FIRSTPOST. 16 October 2015.
  22. Dev, Atul. "What the Indian judiciary has done to itself". The Caravan. Retrieved 20 July 2019.
  23. "'Nepotism' in Collegium System, Alleges Allahabad HC Judge in Fawning Letter to Modi". thewire.in. Retrieved 2 July 2024.
  24. "SC asks Centre to compile views to improve judge appointments". The Hindu . 3 November 2015.
  25. "Collegium system will remain in existing parameters, says Supreme Court". IBN Live. 3 November 2015.
  26. "AG pulls out of drafting procedure to appoint judges". The Hindu . 19 November 2015.
  27. "Jagdeep Dhankhar salvo at SC: Striking down NJAC glaring disregard of mandate, House sovereignty". The Indian Express. 7 December 2022. Retrieved 3 July 2024.