Collegium vs NJAC

With the introduction of the National Judicial Appointments Commission (NJAC), the Collegium method of appointment of judges will be replaced. It will have six members: the Chief Justice, two senior Supreme Court justices, the Law Secretary, and 2 ‘renowned individuals. The Chief Justice, the Prime Minister, and the Opposition leader in the Lok Sabha will induct these eminent people for a three-year term. On the other hand, the Collegium method involves the Chief Judge of India as well as a group of four senior Supreme Court justices recommending nominations and transfers. But it’s not in the Indian Constitution. Judges Consequently, the system developed by Supreme Court decisions (October 28, 1998).

Why Is the Collegium System?

When choosing between collegium vs NJAC according to the Central Government, the Supreme Court has become a “roman empire in imperio”. A “give-and-take” mentality has been criticised by the Judiciary Law Society for dividing the haves of have. In contrast to politicians, the average person must wait years before justice.

When and how was the NJAC formed?

The Constitution (Ninety-ninth Amendment) Act, 2014] approved by the Lok Sabha on August 13 and by the Rajya Sabha on August 14. The National Judicial Appointments Commission Act, 2014, regulates the NJAC’s activities. Both Bills were signed into law by the President on December 31, 2014. It took effect on April 13, 2015, together with the NJAC Act.

What is it about judicial independence if politics are involved?

The NJAC’s judiciary representatives — the Chief Justice and two eminent judges — may reject any proposed judicial appointment. A vetoed proposal cannot be reintroduced. To get a nominee through, the judges need the backing of the other commissioners.

Judgments of the Supreme Court

Article 124 of the Indian Constitution states:

  • The Supreme Court of India must consist of a Chief Justice of India and up to seven additional judges, unless Parliament specifies otherwise.
  • The President appointed each Supreme Court Judge by proclamation under his/her palm and seal, following consultation with such Supreme Court and High Court Judges in the States as the President deems essential for the purpose.
  • In judicial appointment collegium vs NJAC nominations, the President must consider the Chief Justice’s views.
  • The Chief Justice of India’s opinion is binding. The CJI must consult a constituent assembly of at least three senior Supreme Court justices before forming an opinion.
  • Although if two judges disagree, he should not advise the government.
  • In this arrangement, the collegium recommends members to the central govt.
  • The federal government will also provide names for consultation.
  • The appointment procedure is lengthy due to the lack of a time constraint. At the point of decision  if the Collegium presents the same name again, the government must approve it.
  • The lack of oversight and openness of the Collegium System has been criticised by both the government and civil society.

The National Judicial Commission (NJC) was created in 2014 to supplant the standing committee system for appointing judges.

Collegium issues

  • It is secretive and opaque, with members acting as if in a group. Its appointments like  of Justice Dinesh Maheshwari and Judge Sanjiv Khanna, rescinding and replacing prior choices of great justices, is particularly troubling.
  • The Collegium is not answerable to anybody. Lack of a documented operating manual, lack of selection criteria, random reversal of decisions, selective release of meeting recordings are some examples.
  • Talking about the collegium system vs NJAC the decision to establish a Collegium was not taken lightly. Justice Krishna Iyer called this ruling “an atrocious constitutional fraud”.
  • Choosing judges raises questions of ethics, self-selection, and nepotism.

Composition

The Committee would have consisted of the following people 

  • CJI of India (Chairperson, ex officio)
  • Two additional senior Supreme Court justices – ex officio
  • Ex-officio Minister of Law and Justice
  • Two notables

A woman or a person from the Castes or Tribes or OBC or minority groups or a Scheduled Castes or Scheduled Tribes or OBC community must be one of the two notable figures. The famous personalities are nominated for three years and cannot be re-nominated.

Missed chance

The National Judicial Appointments Commission (NJAC) might protect the system from excessive partisanship, improve the quality of appointees, improve the selection process, increase judicial diversity, and restore public faith in the system.

Conclusion

“It is time to make some remarks regarding the collegium system.” To preserve legitimacy, the collegium process must be open, responsible, and impartial. “It seems nothing has transpired so far, even the procedural memo has not yet been finalised,” Mittal added.

The extraordinary January 12, 2018 news conference by four federal judges including Gogoi, before he was the CJI, has not accomplished the objective for which it was organised, according to former CJI R. M. Lodha. According to him, it would be preferable if the subject (of Khanna) was recalled and reviewed threadbare.