National Judicial Appointments Commission (NJAC)

By | December 4, 2015

The National Judicial Appointments Commission (NJAC) was proposed by the Indian government to replace the existing Collegium System for Judicial Appointments. However, the Supreme Court has struck down the NJAC Bill and has called for reforms in the existing  system to usher in transparency in the existing process of judicial appointments.

NJAC

Problems with existing Collegium system according to the government:

  • Process is opaque
  • Selection of judges on considerations other than merit
  • Favouritism being shown in judicial appointments and consequent inefficiency of judiciary
  • There has been evidence that current judicial appointments process has led to inefficient, incompetent, ethically compromised individuals being sworn in as judges
  • The real issue is not who appoints the judges, but how they are being appointed. Opaque system is bound to have subjectivity and personal bias
Problems with the judiciary:
  • Too many vacancies in the High Courts. 276 vacancies in June 2013, against a sanctioned strength of 904. Almost 1/3rd seats are empty
  • Slow and ailing judicial process
  • Lack of judicial auditing system
  • Article 124(3) of the constitution provides for appointment of three types of persons in the Supreme Court including judges of high courts, eminent lawyers and distinguished jurists
    • While the initial two have got representation in the SC, there has not been a single instance wherein an eminent jurist has made it to the apex court
    • Distinguished Jurists are the persons who have done commendable work in the field of law, research professors etc. who are dignified
    • Such jurists are needed in the Supreme Court to improve the canvass of thought process of the apex court and improve quality of judgements
  • The judges have been only appointed on the basis of their seniority. However, this must not be the only factor in deciding the efficiency and mental faculty of judges. Other factors such as following must be added to seniority clause
    • the number of cases judged successfully
    • number of judgements averted by higher courts
    • time taken to dispose off cases
    • Number of written judgements delivered
  • Nearly 2 crore cases are pending in all the Indian courts with 2/3rds of them being criminal cases
  • Lower level judicial proceedings are harbingers of corrupt practices
Reforms for judiciary:
  • To evolve an objective criteria for appointment of judges
  • Only few cases should be put to appeal in higher courts. Wisdom of lower court judges must be respected
  • Legal auditing of why cases took so long must be done
  • Archaic laws need to be repealed which impede the effective and speedy functioning of the courts
NJAC Bill
  • It plans to replace the collegium system with a more transparent Judicial Appointments Commission.
    • The commission would consist of 6 members including the Chief Justice, two most senior judges of Supreme Court, two eminent persons and the law minister
    • Two eminent persons would be appointed by a committee consisting of the Prime Minister, the Chief Justice and the Leader of Opposition in the Parliament
    • Two eminent persons would be selected for a period of 3 years, without having an option of re appointment
  • The term eminent personalities has been left vague by the constitutional amendment and is open to the Supreme Court’s interpretation
  • The bill has been passed as a constitutional amendment bill number 99.
  • Functions of the commission:
    • Appointment of judges of SC and CJI
    • Appointment of judges of high court sand their chief justices
    • Recommending transfer of judges between high courts or from high courts to Supreme Court
    • Ensuring transparency and objectivity in judicial appointments
    • Ensuring that the judges are of merit, ability and other criteria mentioned in the regulations
  • The bill has been challenged in the Supreme Court on grounds of it bridging the independence of judiciary
Problems with NJAC (Why it was struck down?)
  • The Supreme Court considers it as a challenge to judicial independence
  • Vague statements in the bill, open to different interpretations and thus ensuring conflict
  • Concept of eminent personalities and their appointment by a political majority and their significant role in judicial appointments would compromise judicial independence
  • Two members, out of 6, if are against the appointment of a particular judge, the appointment would not take place
  • There is a prevalent trust deficit between the higher echelons of Judiciary and the government.
International Best Practices:
  • UK’s system of appointment: the JAC assesses the candidates on 5 merit criteria:
    • Intellectual capacity
    • Personal qualities like integrity, independence of mind, decisiveness, objectivity etc
    • Ability to understand and deal fairly
    • Authority and communication skills
    • Efficiency

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