NJAC or Collegium: An unsettled debate

The National Judicial Appointments Commission (NJAC) was a proposed constitutional body in India that was intended to replace the existing system for the appointment and transfer of judges to the higher judiciary.

The NJAC was created by the 99th Amendment to the Constitution of India, which was passed by the Indian Parliament in 2014. The amendment established the NJAC as a six-member body responsible for recommending appointments and transfers of judges to the Supreme Court and the high courts of the states and union territories in India.

The NJAC was composed of the Chief Justice of India, two senior judges of the Supreme Court, the Union Minister of Law and Justice, and two "eminent persons" who were to be nominated by a committee consisting of the Chief Justice of India, the Prime Minister of India, and the Leader of the Opposition in the Lok Sabha (the lower house of the Indian Parliament).

The existing system, known as the Collegium system, had been in place since the 1990s and had been the subject of criticism and controversy for several reasons. Under the Collegium system, appointments and transfers to the higher judiciary are made by a committee of judges consisting of the Chief Justice of India and a group of senior judges of the Supreme Court.

The process is opaque and largely insulated from external scrutiny, and there have been concerns about potential corruption and nepotism in the selection of judges. In an effort to address these issues, the Indian government proposed the creation of the NJAC as a more transparent and accountable body for the appointment and transfer of judges.

However, the NJAC faced significant legal challenges and was ultimately struck down as unconstitutional by the Supreme Court of India in 2015. The court ruled that the NJAC violated the principle of judicial independence and the basic structure of the Constitution of India, and the old Collegium system was reinstated.

One of the main reasons why the judiciary was unwilling to implement the NJAC was that it was seen as a threat to the principle of judicial independence. In the past, there have been instances where the government has sought to exert influence over the appointment and transfer of judges, but these instances have generally been the exception rather than the rule.

Critics argued that the inclusion of political representatives on the NJAC would undermine the independence of the judiciary and could lead to the appointment of judges based on political considerations rather than merit. The Supreme Court of India agreed with this argument and ruled that the NJAC Act violated the principle of judicial independence and the basic structure of the Constitution of India. As a result, the old Collegium system, which was seen as more independent, was reinstated.

Main criticisms of the Collegium system 

• Lack of transparency: One of the main criticisms of the Collegium system is that it is not transparent and that it is difficult for the public to know the reasons behind the appointment and transfer of judges.
• Lack of accountability: Another criticism of the Collegium system is that it is not accountable to the public and that it is difficult for the public to hold the judges who make appointments and transfers accountable for their decisions.
• Lack of diversity: Some people have also criticised the Collegium system for not promoting diversity among the judges of the higher judiciary and for not ensuring that a sufficient number of women and members of underrepresented groups are appointed to the bench.
• Lack of public input: Another perceived weakness of the Collegium system is that it does not involve the participation of the public or other stakeholders in the appointment and transfer process and that it is largely the preserve of the judges themselves.
• Potential for corruption: Some people have also raised concerns about the potential for corruption and nepotism in the Collegium system, arguing that appointments and transfers may be influenced by personal connections or other improper considerations.

In response to these criticisms, the Supreme Court of India has taken some steps to enhance the transparency and accountability of the Collegium system. For example, in 2018, the Supreme Court ruled that the process of appointment and transfer of judges under the Collegium system should be more transparent and that the reasons for the selection of judges should be made public. The court also held that the Collegium system should be open to review by the public and that the views of the public should be taken into account in the selection process.

ALSO READ| Police in Indian capital on alert after Spicejet flight bomb scare

Why does the Collegium system still exist in India?

One of the main reasons is that it is seen as a more independent system for the appointment and transfer of judges. Under the Collegium system, appointments and transfers to the higher judiciary are made by a committee of judges consisting of the Chief Justice of India and a group of senior judges of the Supreme Court. This system is largely insulated from external influence and is seen as more transparent and accountable than the previous system, which was based on the personal discretion of the Chief Justice of India.

Another reason why the Collegium system has continued to be in place in India is that it has been upheld as constitutional by the Supreme Court of India.

It is worth noting that the system for the appointment and transfer of judges has evolved over time in India, and the role of the government has varied depending on the specific system that was in place. For example, under the old system that was in place before the 1990s, the Chief Justice of India had a great deal of discretion in the appointment and transfer of judges, and the government had relatively little influence. However, under the current system, known as the Collegium system, the government has a more limited role in the appointment and transfer of judges and the process is more transparent and accountable.

In 2002, the Law Commission of India released a report titled "Reforming the Judicial Appointments System", which made a number of recommendations for improving the system for the appointment and transfer of judges. The report suggested the establishment of a National Judicial Commission (NJC) as a more transparent and accountable body for the appointment and transfer of judges. However, the recommendations of the Law Commission of India were not implemented and the NJC was never established.

Review of Supreme Court's stance regarding appointment and transfer of judges.

The following landmark decisions have been issued by the Supreme Court regarding the system of appointing and transferring judges:

In the case of Supreme Court Advocates-on-Record Association v. Union of India (1993), the Supreme Court ruled that the power to appoint and transfer judges to the higher judiciary rested with the Chief Justice of India and a group of senior judges of the Supreme Court. This ruling established the Collegium system as the mechanism for the appointment and transfer of judges in India.

In Re: Special Reference 1 of 1998 (1998), the Supreme Court ruled that the Collegium system was the appropriate mechanism for the appointment and transfer of judges and that the government had no role in the selection process. The court held that the independence of the judiciary was a fundamental feature of the Constitution of India and that the government could not interfere with the appointment and transfer of judges.

In National Judicial Appointments Commission v. Union of India (2015), the Supreme Court ruled on the constitutionality of the National Judicial Appointments Commission (NJAC), which was a proposed constitutional body intended to replace the Collegium system. The court struck down the NJAC as unconstitutional, holding that it violated the principle of judicial independence and the basic structure of the Constitution of India. The court also ruled that the NJAC Act was not consistent with the principle of separation of powers, as it sought to interfere with the judicial function of appointments and transfers. As a result, the old Collegium system was reinstated.

In the case of Supreme Court Bar Association v. Union of India (2018), the Supreme Court ruled that the process of appointment and transfer of judges under the Collegium system should be more transparent and that the reasons for the selection of judges should be made public. The court also held that the Collegium system should be open to review by the public and that the views of the public should be taken into account in the selection process.

WATCH| Indian Army Chief Manoj Pande briefs on India-China border

How to develop an effective and transparent system for appointing and transferring judges?

To address the concerns of both the Supreme Court and the government concerning an effective and transparent system for appointing and transferring judges in India, the following steps may be taken:

• Improving the transparency and accountability of the existing Collegium system: To make the Collegium system more transparent and accountable by making the reasons for the selection of judges public and by ensuring that the views of the public are taken into account in the selection process.
• Establishing an independent body to oversee the appointment and transfer of judges: Another option could be to establish an independent body, such as a Judicial Appointments Commission, to oversee the appointment and transfer of judges. This body could consist of judges, legal experts, and other stakeholders and could be responsible for ensuring that appointments and transfers are made on the basis of merit and not on the basis of political considerations.
• Introducing a more participatory process for the appointment and transfer of judges: A third option could be to introduce a more participatory process for the appointment and transfer of judges, such as a system that involves the consultation of a wider range of stakeholders, including legal experts, civil society organisations, and members of the public.

Any reform of the system for the appointment and transfer of judges needs to be carefully considered and must take into account the concerns of the judiciary and other stakeholders. It will also be important to ensure that any reform is consistent with the principle of judicial independence and the basic structure of the Constitution of India.

(Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.)