Author: Jayapriya.A, Chennai Dr.Ambedkar Government Law College, Pudupakkam.
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ABSTRACT:
Indian judiciary is renowned for its independency from its legislative and executive branches . It rule out the concept of separation of power by having the notion of independent judiciary as its basic structure via various judgment . The question invoked , whether the constitution of national judicial appointment commission will be Transgressio legis ? or will contrventio the essence of separation of power? The higher judiciary appointments are to be made by it was declared null and void by the supreme court due to its intervening nature with the core of judiciary . To demonstrate its true nature it is to be Analyzed in an intensified manner .
Keywords : separation of power , independent judiciary , collegium , transgressio legis
INTRODUCTION:
Independence of judiciary is a basic structure for constitution to work free from any ulterior motive and to maintain the sanctity & integrity of honorable judiciary which is to say that those who occupy the higher position should be appointed carefully keeping in mind their qualification & past work rather than mere seniority and recommendation. In the light of constitution , the judges of the higher judiciary were appoint via article 124(2) & 217(1) by the president . To make these process more transparent and trustworthy NJAC was about to setup via amendment. National judicial appointment commission is an aftermath of 99th constitutional amendment act also , It is believed that it will create a drift on the judge hegemony over the judiciary.
METHOD OF APPOINTMENT BEFORE NJAC :
After independence in 1950 India adopted its constitution drafted by its drafting committee headed under the chairmanship of B.R AMBEDKAR. In accord with the constitution the president shall appoint the CJI and remaining judges of supreme court in consultation with the CJI and other judges if necessary. Until 1973 there exist an convention that the senior most judge to be appointed as CJI , but it was reversed by appointing A.N RAY as chief justice of India . Again the same act continued in 1977 by appointing a CJI who supersede their seniors. This forge a clash between judiciary and executive . Then the system of COLLEGIUM consist of CJI and 2 senior most judge of supreme court was formed in 1993 by virtue of a petition and in 1998 the strength in the collegium system increased by having CJI and 4 other senior most judges of supreme court. This collegium setup will decide upon the appointment and transfer of judges of higher judiciary by way of recommendation to the president.
LEGISLATIVE REFORM IN JUDICIAL SYSTEM:
The government notified , the national judicial appointment commission act , 2014 and the constitution ( ninety-ninth amendment) act, 2014 for bringing in a change in the existing system for appointment of judges in supreme court and high courts. Two bills were ‘ the constitution ( one hundred and twenty first amendment) bill, 2014 ‘ and “ the national judicial appointment commission bill, 2014” passed unanimously by the lok sabha on 13th august 2014 and in rajya sabha on 14th august 2014. Successively these bills were ratified by the required no.of state legislature before getting the president’s assent . Also an amendment made by way of inserting Art. 124-A, Art.124-B , Art 124-C to give effect to the NJAC as an constitutional body.
This commission consist of CJI as chairperson with 2 senior most judges & union minister in charge of law and justice as ex-officio members and 2 eminent persons as its members. There will be an selection committee for selecting the eminent person consist of prime minister , CJI and leader of opposition party in lok sabha and one of the eminent person should be on the category of SC ,ST ,OBC ,minorities or women and appointed for the period of 3 years with no re-appointment. Consisting of these personalities , the commission will recommend person for appointment and transfer in the higher judiciary. Parliament has power to make any rules or regulate the procedure of commission to discharge its functions. By way of NJAC act the commission get more authority.
But , in 2015 via “ Supreme Court Advocates-On-Record Association vs UOI” both the amendment and act of NJAC declared null and void. The reason stated as it infringe the independence of judiciary and contravene the concept of separation of power. This held with ratio of 4:1 majority. .
COLLEGIUM CRITICS:
Nepotism : The renowned collegium system is followed in India to appoint and transfer the judges of higher judiciary. But there exist some sort of lacks in this system . Many supreme court advocates and judges welcome the NJAC setup instead of following the old one . The popular phrase is used to refer the collegium system as imperium in imperio means empire within an empire . This resembles the nepotism in the sacred field. There are no checks regarding this process and review regarding it. The main remonstrance is, kith and kin of the sitting judges were appointed as judges due to individual bias and other factors . It shows the absence of transparency and accountability of the judiciary sometimes led to the ignorance of seniority in certain cases. It’s not only a criticism but also a fact which is remarked by history. Only few were appointed as judges of supreme court beyond this kith & kin relation. The law commission in the 230th report mentioned that the judges, Whose kith and kin are practicing should not be appointed in the same high court. Also regarding this issue the supreme court doesn’t make any reforms . Instead of making certain amendments to the NJAC act , it totally nullify the act and amendment on the ground of breach of basic structure of constitution.
Constitutionality : The collegium is not a constitutional body as there is no official rules and procedures for its function. Moreover the selection of judges is not accountable to the legislature or general public . These can led to act of arbitrariness in the appointment. The bitter truth is judiciary being the guardian of constitution doesn’t have a constitutionally approved procedure or body for its judges appointment. This may create estrangement towards the judiciary. As compared to Collegium system the NJAC has the merit of constitutional body and the recommendations were made transparent.
Judges criticism : In the NJAC case, the judgment was passed in 4:1 ratio with a dissenting judgment from justice Chellameshwar. In his dissent, pointed out that “ transparency” is the vital factor in the constitutional governance , in this collegium system it is “completely opaque and not accessible to the public”. He listed out a number of cases that judiciary failed out because of poor quality on appointment. He says that,” judicial appointment is a matter of great concern and should take place without any bias”. Also quoted that ‘ The intention of law makers was to divide the power equally rather than granting unfettered powers to be misused in the name of what the intent of lawmakers was and whatnot ‘.Other than this many supreme court judges condemned the method of “judges appointing judges “.
NJAC : THE EXECUTIVE HEGEMONY
By the petition of “ supreme court advocates-on-record association vs uoi” the Apex court by constituting a constitutional bench presided by Justice Jagdish singh khehar , Madan B.lokur , Kurian Joseph , Adarsh Kumar Goel and J.Chellameshwar. The judgment was passed in 4:1 ratio with dissent by J.chellameshwar. The majority ruled out that the NJAC and the 99th constitutional amendment act was held null and void. Apart from the arguments, the NJAC act is likely towards the executive dominance over the judiciary. Under art.124-A (1) the committee should posses union minister of law and justice and 2 eminent person. The encompassion of non- judicial members in the NJAC itself breaching the independence of judiciary. The question arise here is , how can a non-judicial person is qualified to recommend a judge for higher judiciary? The 2 eminent person to be chosen by selection committee consist of CJI , PM and leader of opposition party in lok sabha . This provision ultimately provide a way for chaos and influence by the ruling and opposition party. Both the parties will suggest their associates which will led to a political chaos in the judges appointment. Also there is no clear qualifications mentioned for the eminent persons. How can a person with no clear qualification is tend to be in the committee for appointment of judges of higher judiciary? This will insist domination by the executive over the judiciary in its own sphere.
Under sec5(2)and 6(6) of the NJAC act , the commission shall not recommend a person if any of two members disagree with the nomination. This creates an perilous situation of political influence in the commission. Ultimately this will stops the judiciary from its independent functioning . This is an direct attack on independence of judiciary and uninhibited assault on basic feature. This affect the primacy of collective opinion of CJI and other 2 judges, if vetoed by the majority of 3 non-judicial members. This provision doesn’t even provide a casting vote to CJI incase of tie in the nomination. .
Under Art.124-C the parliament had given power to make any law or lay down procedure and regulations for the functioning of the commission. This clause is directly made contravene to the separation of power . This clearly implies the legislature to rule over the commission which appoint the judicial luminaries. Alike, in the NJAC act through sec 11(1) , that central government had given power to make rules and regulations regarding the act. These provisions are readout in the view of executive dominance over judiciary. Besides creating clash between the executive and judicial, it’ll create disaffection towards each other. As in most of the cases the executive is being the litigant , by allowing executive to take part in judicial appointment will likely to have benefit towards its actions i.e, judiciary can be at their benefit.
The act is not clear in its subjugations and terms used. There is no clear definition given for the terms like other criteria specified by regulations , fit to appoint and all powers regarding the commission had vested with the parliament and central government while the judiciary is subjected to play a puppet role in its own members appointment.
JUDICIAL APPOINTMENT IN OTHER COUNTRIES:
In Russia , have a collegium of judges elected through process of election . The list of collegium judges were sent to president, where he can also refuse to appoint the candidate as judge.
In UK , the judicial appointments made through Judicial Appointment Commission along with checks and balance by constituting a body called ‘ judicial appointment conduct and ombudsman’ to deal with the complaints lodged against the appointments made.
In Germany the judicial appointments made by the executive and legislature. The judiciary participate through ‘ judicial electoral committee’ and ‘advisory bodies’
In US , the president has power to appoint with consulting the senate judicial committee. One of the most impressive feature of judicial appointments in US is that the federal court judges occupy office during good behaviour.
In France, a body called ‘ the high council of the judiciary’ consist of 20 members from judiciary presided by president as president and minister of justice as ex-officio president for the purpose of appointing judges.
In South Africa, the president nominate the judges after consulting with ‘ judicial service commission’ .the members of his committee were judges, advocates, members of parliament , legal professors and other eminent members nominated by president.
CONCLUSION:
There are several analysis in favour of both the commission and the collegium but the key to be noted is every measure tend to create an obligation binding among all the citizens of India . The implementation of NJAC will definitely create a political ascendancy over the judgments , also it won’t make the judiciary as colleague to legislature and executive but a subordinate. There should be a executive sway which doesn’t affect the independence of judiciary and also with impeccable qualifications. When all the three branches act according to their scruples there is no need of obtrude to be made by the other.
FAQ:
1. What is the primary reason to repeal the NJAC?
NJAC act by way of sec 5, 6, 12 directly violate the independence of judiciary i.e., the basic structure of the constitution.
2. What will be the impact if NJAC is implemented?
There will be an dominance of executive over the selection process. It might be used for the benefit at future cost. But everything will be transparent and accountable to the general public.
