APPOINTMENT OF JUDGES

• Last week, Vice-President Jagdeep Dhankhar commented on the on-going heated debate between the Central government and the Supreme Court over the matter of judicial appointments.
• Referring to the 2015 verdict of the SC which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, Mr.
• Dhankhar asked how the judiciary could have run down a unanimously-passed constitutional provision which reflected “the will of people”.

What was the NJAC?

• In August 2014, Parliament passed the Constitution (99th Amendment) Act, along with the National Judicial Appointments Commission (NJAC) Act, which together provided for the creation of an independent commission to appoint judges to the Supreme Court (SC) and High Courts (HC).
• This commission was to replace the collegium system. The two Bills were ratified by the required number of State Legislatures and got the President’s assent on December 31, 2014. Articles 124 and 217 of the Constitution deal with the appointment of judges to the SC and HCs of the country.
• Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the SC and the HCs.
• So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three SC judgments — usually referred to as the ‘Judges Cases’.
• In order to replace this system which received criticism over the years for its lack of transparency, among other provisions, the Constitution (99th Amendment) Act, introduced three primary Articles.
• Article 124A which created the NJAC, a constitutional body to replace the collegium system, Article 124B which conferred the NJAC with the power to make appointments to Courts and Article 124C which accorded express authority to Parliament to make laws regulating the manner of the NJAC’s functioning.
• Under the NJAC Act, the Chief Justice of India and Chief Justices of the HCs were to be recommended by the NJAC on seniority while SC and HC judges were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations”.
• Notably, the Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it. In the collegium system, senior-most judges make appointments to the higher judiciary.

Why was the NJAC challenged?

• In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions which had by then become laws.
• The SCAORA contended in its petition that both the Acts were “unconstitutional” and “invalid”.
• It argued that the 99th Amendment which provided for the creation of the 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 invoked the Second Judges Case to say that CJI primacy had to be protected. It also stated that the amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges was an integral part.
• The Second Judges Case of 1993 emphasised the role of the CJI in appointing judges to SC and HCs.
• “The role of the CJI is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter,” the verdict reasoned.
• The “basic structure” doctrine meanwhile refers to the idea that the Constitution could not be amended or read in a manner that destroyed the document’s basic structure.

What were the arguments between the Centre and the Supreme Court?

• Former Attorney-General Mukul Rohatgi, for the Union government, had argued in court that the Second Judges case, invoked by the petitioners was not valid in the case of the NJAC as the “very basis” of the ruling was now gone.
• The Centre also argued that the Act in no way took away the primacy of the judiciary but in fact, diluted the power of the executive as only one member, the Law Minister, was in the NJAC as opposed to three SC judges.
• It also said that the amendment was “perfectly consonant” with the basic structure as it strengthened the “independence of the judiciary, checks and balances and democracy”.
• Solicitor-General Ranjit Kumar further argued that the collegium was a “failure” and worked on a system of “intra-dependence”, where there was “no transparency”.
• In October 2015, the five-judge bench of the top court hearing SCAORA’s plea gave its ruling, with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”.
• Significantly, the Bench admitted that all was not well even with the collegium system of “judges appointing judges”, and that the time was ripe to improve the system of judicial appointments.

SOURCE: THE HINDU, THE ECONOMIC TIMES, PIB