Exam View: Judiciary, High Court and Supreme Court, NJAC, Appointment of Judges, collegium System
Context of the Article: Judiciary’s role in safeguarding the rights of citizens can only be ensured by keeping Constitutional politics insulated and independent from other organs of governance.
Author’s Views on Collegium System is Law of the Land Issue
- Constitutional politics which thrives on granting vast powers of supremacy to legislature and executive, also establishes a framework of limits.
- The Constitution commands that the apex court generate principles which define thresholds of power because every institution is supreme within its own domain and no institution is sovereign in India.
National Judicial Appointments Commission
- The NJAC Act, 2014 was enacted to regulate the procedure to be followed for recommending names for appointment as Chief Justice of India and other judges of Supreme Court and Chief Justices and judges of High Courts and for their transfers.
- The commission was established by the 99th Constitutional Amendment Act, 2014.
- The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.
- However, in October 2015, Supreme Court struck down as unconstitutional an amendment to the Constitution establishing the NJAC.
- The five-judge bench struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio.
Author’s Views on Judicial Appointments
- The Second Judges Case in 1993 characterised the appointment of judges as a “participatory joint venture” which will enable “all the constitutional functionaries” to “transcend the concept of primacy between them”.
- Further, the apolitical nature and the non-political complexion of the judiciary cannot be separated from the process of appointments.
- The Court’s position: Contrary to political accusations, the court does not prevent Parliament from bringing in a revised law or amendment.
- The Court does not devalue the position of the Union Law Minister; it only invalidates the structure of the NJAC, which forges a voting coalition that would depose judicial primacy.
- Union of India has accepted the judicial collegium. The opinion in the Special Reference Case (1999), do not contest the collegium system but seek only the certification on whether the plurality of justice should be limited to three.
Possible Solutions Suggested
- Respect for pluralism and Diversity: Small but progressive steps such as more imaginative respect for pluralism and diversity in judicial appointments is required.
- No Absolute transparency: Absolute transparency is unattainable when one must choose among many super-qualified persons.
- Procedure reasonableness: No qualified candidate should be excluded from consideration, and all must be treated equally.
- Public monitoring: Any symptom of non-constitutional judicial despotism should be publicly monitored and held as a ground for judicial impeachment.
- Parliamentary sovereignty: Absolute parliamentary sovereignty within the law and not beyond the law is required.
- Judicious comity — not confrontation — across all democratic institutions is the best response.
- The Constitution of India decrees and deserves deep harmony. Constitutional brinkmanship among the apex institutions of co-governance must not be allowed.