TOUSIF RAZA
Introduction
The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible actually 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. In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the NJAC Act, 2014 as unconstitutional and null and void. On October 16, 2015, the five-judge bench ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”.09-Dec-2022. The Constitution (99th Amendment) Act, which established the NJAC and the NJAC Act, was passed by Parliament in 2014 to set up a commission for appointing judges, replacing the Collegium system. This would essentially increase the government’s role in the appointment of judges. Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges. In 2014, the National Democratic Alliance government brought the National Judicial Appointments Commission (NJAC) Act in an attempt to change the system of appointment of judges Again the NJAC Act was found unconstitutional on October 16, 2015, in the case of Supreme Court Advocates-on-record Association v. Union of India (2015) by a five-judge bench made up of Justices including JS Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh K.
Detailed Account of the Bill
The National Judicial Commission Bill (NJAC) was introduced in Rajya Sabha to regulate the appointment of judges. It is a private member’s bill and aims to regulate the procedure to be followed for recommending people for appointment as the Chief Justice of India and other judges of the Supreme Court and Chief Justices and other judges of High Courts. It also aims to regulate their transfers and lays down judicial standards and provide for accountability of judges. Establishing credible and expedient mechanism for investigating individual complaints for misbehavior or incapacity of a judge of the apex court or of a high court and to regulate the procedure for such investigation. Make a proposal for an address by parliament to the President in relation to procedure for removal of a judge and for related matters. As per it’s history parliament in 2014 passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission Act, 2014 for creating an independent commission to replace the collegium system. The Constitution (99th Amendment) Act introduced three key articles 124 A, 124B, and 124C and amended clause 124(2). Article 124A- created NJAC. Article 124B- vested NJAC with power to make appointments to Supreme Court and various High Courts. Article 124C- authorized the Parliament to make laws to regulate NJAC’s functioning. • NJAC was to be composed of: a. Chief Justice of India as ex-officio chairperson b. Two senior-most Supreme Court judges as ex-officio members c. Union minister of law and justice as ex-officio member. wo eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women) The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended based on ability, merit, and “other criteria specified in the regulations”. The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it. It was challenged in the Supreme Court which, in 2015, struck down NJAC and 99th Amendment.
WHY WAS NJAC CHALLENGED IN COURT
The Supreme Court Advocates-on-Record Association (SCAORA) filed a plea against both the bills terming them to be unconstitutional and invalid. It argued that- creation of NJAC took away the “primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or “suspended by majority of three non-Judge members”. It “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part. Independence of q- This concept was derived from the theory of separation of powers enshrined in Article 50. It is a product of the Kesavananda Bharati judgement (1973) in which the court held that Constitution could not be read in a manner that destroyed or infracted its basic structure. The NJAC Act was “void” and “ultra vires” the Constitution as it was passed in both Houses of the parliament when Articles 124(2) and 217(1) as originally enacted were in force, and the 99th Amendment had not received Presidential assent. Unworkable appointment process- under Article 124A, the NJAC had an even number of six members, but its chairperson had no casting vote. The eminent persons to be nominated as members to select Supreme Court or high court judges needed no connection with the law and were not required to have an expertise in the matter. Section 5(1) of the act required NJAC to recommend the senior-most judge of the Supreme Court as the Chief Justice of India “if he is considered fit to hold the office”. But neither the 99th Amendment nor the NJAC Act had any prescribed criteria of what constituted fitness to hold office and on what ground could the senior-most judge be declared “unfit”. The act empowered the Parliament to make regulations regarding the criteria and procedure to appoint SC and HC judges. It also empowered it to nullify these regulations or modify them. This made a complete mockery of the appointment process. From the information given above, it is clear that people may have both positive as well as negative opinions about this bill or there could be many questions about the objection of the bill. Although this bill has nothing to do with the political system, but socially there is scope for it to be seriously discussed. As a part people any commission framed or organized should be the basic element of peace for people by establishing prosperity and this is possible only when any commission is political free and pure…
The Author hails from Tangmarg and can be reached at tousifeqbal555@gmail.com
