Collegiums system or NJAC???

The NJAC (National Judicial Appointments Commission) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the 99^th constitution amendment and the NJAC act, which were passed by both the houses of the Parliament and signed by the president in 2014. The NJAC would have replaced the Collegium System (Three Judges Cases) for the appointment of judges as summoned by the Supreme Court.

The NJAC Bill and the Constitutional Amendment Bill, was approved by 16 of the state legislatures in India. Both the acts came into force from 13 April 2015. However, on 16 October 2015 the Supreme Court maintained the Collegium System and revoked the NJAC, labeling it unconstitutional after hearing the petitions filed by several persons and bodies.

The verdict had read that if the Union Law minister is contributing to the appointment of judges, how a society can expect the judges to work without being influenced by political parties.

The NJAC had a six member panel that included the chief justice of India, two senior most judges of the Supreme Court, the union law minister and two eminent persons. The two eminent persons were to be recommended by another panel consisting of the Chief Justice of India, the Prime Minister and the leader of opposition.

The judgement has evoked conflicting opinions, with one fraction supporting the NJAC and the other opposing it. Those in favour of the NJAC justify their stance by citing India’s 125 crore people that rule the country through their elected representatives in the different organs of the legislature. They say that the sovereignty of the nation which lies with the people of India cannot be compromised, which is exercised by the people through Parliament. The verdict has a strong opposition from the central government and also the opposition. They say that the Supreme court has upheld only one basic structure- Independence of the Judiciary but has declined other basic structure that are the elected government, the council of Ministers and the Prime Minister.

Union Minister, Arun Jaitley in an interview launched direct attack on the judiciary, calling the judgement flawed. He said that democracy itself would be in danger if the elected are undermined. There are also other learned jurists who have criticized the existing collegiums system and raised the need for a reform. K.P.S. Gill, a former DGP, said that India is the only country where judges select themselves, determine their own transfers and discipline themselves. He recommended the setting up of a judicial commission that would not only be responsible for the appointment and transfer of judges but also for seeing to it that judges perform their duties without any favor.

On the other hand, India is based on the Montesquieu’s theory of the separation of powers which state that one organ should not interfere with the powers of another. The state is divided into the executive, the legislature and the judiciary and has separate set of functions. In short, the legislature is to make laws, executive is to perform the law and the judiciary is to defend it. The legislature however cannot make a law which violates the basic structure of the constitution, which states that all its three pillars cannot interfere in each other’s affairs.

The judiciary exists to serve the people by performing various functions like passing and upholding judgments in the interest of the people, interpreting the constitution and also exists to keep the government in check. In such an institution, will government presence not mean compromising the authenticity of the judiciary in dealing with the legislature and the executive? Is intruding on judicial territory acceptable in the name of ensuring accountability or is there any ulterior motive of the government to keep the judicial bench under the eye of the government?

Ideally, there should be a check in each and every organization and the judiciary being one of them. However, is it necessary for such a check to come from Legislature? Moreover, how can you justify the veto offered to the two eminent persons and especially when such persons are elected by a board consisting of two persons from the legislature out of three.

Many even argue that judges are human and can be vulnerable to personal biases. But doesn’t the same law apply to the legislature. If the judiciary is vulnerable to personal biasness then so is legislature. Even the so-called democratically elected prime minister is not so directly elected by us or even the leader of the opposition.

There is no denying the fact that there is an urgent need of replacing the age old and erroneous collegiums system to make it more transparent but does it have to come from an already questionable NJAC?