NJAC as 'unconstitutional and void'

Recently SC has rejected the NJAC(National Judicial Appointment Commission)Act,2014 and Constitution(Ninty Ninth Amendment)Act and declares the NJAC as 'unconstitutional and void'.With this judgement the earlier collegium system of appointment will be operative again.

Background:

NJAC was established as an independent body through Constitution(Ninty-Ninth Amendment) Act for appointment and transfer of judges to the higher courts in India.Along with that National Judicial Appointment Commission was also passed to regulate the working of Commission which was comprising of CJI,two senior judges of SC,Union Law Minister and two eminent person.In this regard the body had provided a say to executive and civil society in the appointment of judges. 

However with the SC verdict the earlier collegium system will be functional again.

Appointment in Collegium system:

As per Article 124, judges of SC and HC are appointed by  President after consultation with such judges of SC and HC as the President may deem necessary. Meanwhile since 1982 SC has interpreted this provision  in various judgements('First Judges case','Second Judge case' and Third Judge case') and provided the collegium system for appointment.Under which CJI would tender advice to President which will be binding and CJI will have to require 'plurality in consultation'.Thus consultation will require collegium of four senior most judges in case of SC and two senior most judges in case of HC.

Recent judgement:

The constitutional bench of SC has declared NJAC as 'unconstitutional and void'

•   Declaring that the judiciary can't caught in a “web of indebtedness” towards the government, SC has done away the say of executive and civil society in appointment of judges in highest courts.

• As per SC , NJAC was an impingement upon the principle of 'independence of judiciary','separation of power' and violative of 'basic structure of constitution'.

• Apex court said that the independence and integrity of the judiciary is of the ‘highest importance’ not only to the judges but to the citizens seeking resort from a court of law against the high-handed and illegal exercise of power by the executive.

why NJAC was needed:

• Constitution mentioned consultation process as per the choice of president but the collegium system has done away with this choice and made the recommendation binding on President.

• Collegium system was a closed door process depriving people of transparency.

• Further delay in judgements,increasing number of pending cases needs appointment as regular process which was not followed properly in collegium system.

• Along with that the choice of CJI was limited to senior judges often overlooking the meritorious judges.

• Apart from that it was also lacking any separate office dedicated for collection of personal information and track record of judges needs to be appointed.

With this view various bodies have recommended for setting up of an independent appointment body.

2nd ARC-->Commission composing of CJI,PM,Law minister,Speaker of Loksabha,Leader of Opposition from both Houses.

National Advisory Council-->Body  comprising of CJI,Vice President,PM,Law Minister,Speaker of Loksabha,Leader of Opposition from both Houses.

Law Commission(1987)--> Commission comprising of CJI (Chairman), three senior most SC judges, immediate predecessor of the CJI, three senior most CJs of HCs,Law Minister,Attorney General,one Law Academic.

These recommendation was given to rectify the opaque process keeping in mind the prevalent global trend which is-

Country	Method of Appointment	Involved Entity
USA	By President	Justices are nominated by the President and confirmed by the US Senate. Senate Judiciary Committee holds hearings and votes on whether nominations should go to the full Senate.
UK	By a selection commission	SC President, his deputy and one member each appointed by the JACs of England Scotland and Northern Ireland. The JACs comprise lay persons, members of judiciary and the Bar.
South Africa	By President	On the recommendation od Judicial services Commission

Need of Hour:

Judiciary is an important organ of Indian democracy working as a bulwark so any case of infringement in its independence is not acceptable for the working of  institution as well as for the people.But at the same time delay in justice(as justice delayed is justice denied),non transparent process is denying people from their basic rights i.e. justice(which is to be served timely and speedy).So it expected that judiciary take note of global trend and adopt an independent body which have say of various corners of people without infringement in its integrity.



Source:The Hindu,PRS