National Judicial Appointment Commission Act, 2014

CONTENT Introduction Background Composition 99th Amendment Functions of the Commission Highlights of NJAC Conclusion & Suggestions

INTRODUCTION The NJAC Act and the 99th Constitutional Amendment Act came into force on 13 April 2015. The NJAC Act provides for the procedure to be followed by NJAC for recommending persons for appointment and transfer of chief Justice of India and other Judges of supreme court and Chief Justice and other Judges of high courts. The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015

BACKGROUND Constitutional provisions regarding appointment of judges to SC &HC before the amendment states that Article 124(2) “every judge of the supreme court shall be appointed by the president by warrant under his head 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 sixty-five years: provided that in the case of appointment of a judge other than the chief Justice of India shall always be consulted” Article 217(1) says that “every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years”. 

CONT. Practice followed till 1981: A  practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President and, if agreed to, the appointment was  made. 1981-1993: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India (AIR 1982 SC 149), the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case , the primacy of the Chief Justice of India was held to be essential.  The 1993 decision was reaffirmed in third judges case 1998 [1998 (7) SCC 739] on a reference being made by the President under Article 143 of the Constitution. The Chief Justice of India and his four senior-most colleagues were referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.

INDEPENDENCE OF JUDICIARY A SIN QUA NON OF DEMOCRACY The constitution of India says the Executive ,Legislature And Judiciary are the three arms of our constitution . Judiciary is more powerful, primarily because it has the power of judicial review over every action of the executive and the legislature.

COMPOSITION As per the amended provisions of the constitution, the Commission would have consisted of the following six persons: 1. Chief Justice of India (Chairperson, ex officio) 2. Two other senior judges of the Supreme Court next to the Chief Justice of India - ex officio 3. The Union Minister of Law and Justice, ex-officio 4. Two eminent persons 5. These (two) eminent persons would have been nominated by a committee consisting of the

99TH AMENDMENT ACT 2014 Amends Article 124(2) of the constitution to provide constitutional status. ARTICLE 124A provides for composition of NJAC consist of Chief Justice of India(chairperson) Two senior most SC judges The union Minister of Law and Justice Two eminent persons (nominated by a committee consisting of CJI, PM and leader of opposition in the Lok Sabha).the eminent person is nominated for period of .3 years and not eligible for re-nomination.

FUNCTIONS OF THE COMMISSION FUNCTIONS (Article 124B) recommending for the Appointment of CJI ,judges of SC, Chief justice and other judges of HC , Transfer of Chief justice and other judges of HC , Ensuring recommended persons are of ability and integrity. 3. Article 124C enables parliament to make laws to regulate the procedure, functioning and manner of selection of persons for appointment.

HIGHLIGHTS OF NJAC ACT 2015 The Act prescribes time limit for intimation of vacancies by the central government. Appointment will be based on the ability, merit and any other criteria of suitability as specified by the regulation. The procedure for transfer of judges is specified only through regulations. President may require to reconsider the recommendation but after which president shall make appointment Veto powers of the members: The NJAC shall not recommend a person for appointment if any two members of the commission do not agree to such recommendation. the Commission would frame the regulations under Section 12 of the NJAC Act, 2014.The NJAC's regulations would lay down the “criteria of suitability”, the procedure and conditions for selection and appointment of a Supreme Court and High Court judges.

SUGGESTIONS & CONCLUSION Qualification of Eminent Persons has to be prescribed . High academicians from Law university, statesmen not involved in the political polemics of the country may be included. There is provision regarding merit based appointment in the Act, a standardized criteria for evaluating merit should also be included. Commission may prepare a panel for the H.C as well as the S.C and release the name for public response. The Act should have encouraged diversity in appointment in terms of gender, religion, cast and ethnicity . Bright young judges should also be considered in selection process in S.C other than relying on seniority principle.

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