NJAC vs Collegium system and how judges are appointed in other countries
New Delhi: The Supreme Court in a verdict on Friday struck down the constitutionality of National Judicial Appointments Commission (NJAC) which was to replace existing collegium system for the appointment of judges to the higher courts.
To replace the collegium system in which the senior judges of judiciary are responsible to appoint their own brethren, the government had passed two acts.
One of the Acts amended the Constitution to replace the method of appointment of judges by a collegium system with that of an ‘independent commission' called NJAC. The other Act laid down the processes in relation to such appointments.
Here are some notable facts of these two systems to appoint judges:
1- NJAC or the 99th constitutional amendment was passed by Parliament in August 2014 and received Presidential assent in December 2014.
2- The law was passed unanimously by Parliament and state assemblies, meaning all political parties were in support to pass this law.
3- NJAC would be composed of (i) the Chief Justice of India (Chairperson) (ii) two other senior most judges of the Supreme Court, (iii) the Union Law Minister, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.
4- “Two eminent persons” of NJAC panel would be “lay persons” without any connection to the judiciary. Those eminent persons could not even be related with the profession of law or perhaps individuals who did not even have any law related academic qualification.
5- The inclusion of these two eminent persons was the biggest doubt of the SC. The judges in their verdict said, “Inclusion of lay persons in the NJAC would be disastrous.” “It is imprudent to ape a system prevalent in an advanced country, with an evolved civil society,” the judges said.
1- The constitution lays down the process to appoint judges to the higher judiciary. As per the 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 of 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 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the Chief Justice of India shall always be consulted:”
2- Under the collegium system, the Chief Justice of India and 4 other senior most SC judges make recommendations for persons to be appointed as SC and HC judges to the President.
3- The collegium system was created in 1993 and evolved through Supreme Court judgments in the Three Judges Cases in 1981, 1993 and 1998.
4- On December 30, 1981 in S.P. Gupta case or the First Judges Case, the SC ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
5- On October 6, 1993 in Supreme Court Advocates-on Record Association vs Union of India or the Second Judges Case, the court created the collegium system which has since been in use.
6- On October 28, 1998 in the Third Judges Case the SC clarified the collegium system. It was not a case but an opinion delivered by the court responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan under his constitutional powers.