With the passage of Constitution Amendment and National Judicial
Appointment Commission bills (NJAC) in both the houses of Parliament,
unanimously, it gave a new dimension in the appointment of judges of High Courts as
well as Supreme Court. The NJAC will replace the rotten collegium system, which
is discharging its duties in appointment of judges of above said courts, as of
now. The idea of such a statutory body is a prudent one because lots of
questions were raised against the present system in the recent past. There was
a growing dissatisfaction in the legal world as merits and talents were being
overlooked by collegium system. Nepotism and favouritism were the sole criteria
for selection of judges to the Supreme Court and High Courts. Despite many
faults, the collegium has been widely credited with protecting the judicial
independence and no interference from executive.
The introduction of new commission will give an equal say in the
selection process of judges, which so far is missing. Six members panel will
choose the best candidate. The panel will be headed by the Chief Justice of
India. Besides CJI, two senior most judges, Union Law Minister and two eminent
personalities will be its members. The
Prime Minister, Chief Justice of India and Leader of Opposition in Lok Sabha
will select the eminent persons, out of which one member will be nominated from
among the Schedule Castes, tribes,
minorities or women. Over the ongoing debate on scraping of collegium system
the legal fraternity have been divided, the pro system legalists accusing the
government of infringing the primacy of the judiciary while anti group says new
commission will help the talented to come up. Former CJI AK Ganguly said, “The
present collegium system has defeated its purposes and an alternative must be
found out”. Meanwhile Union Law &
Justice Minister Ravi Shankar Prasad quoted in Lok Sabha, “The independence of
judiciary will not be diluted”.
However, many eminent lawyers have challenged the government with
regards to scrapping of collegium system. Lawyers like F Nariman and Kapil
Sibal are planning to move the apex court shortly. They say the bills which
have been passed in Parliament violate the basic structure of Constitution and
that is enough for them to drag the Centre in Court. They also question how the
veto power can be given to any of two members of commission to scuttle the
appointment of an individual? They also requested the Supreme Court to look
into the matter as it pertains to the independence of Judiciary.
Article 124 and Article 217, clearly state that the “Executive”
will appoint the judges after consulting the judiciary and not the other way
around. Article 124 states that the President shall appoint every judge of the
Supreme Court after consultation with other Supreme Court and High Court judges
as the President may deem necessary for the purpose. It also says that except
for the appointment of the Chief Justice of India, the CJI shall always be consulted
for appointing SC judges. Article 217 states that every High Court judge shall
be appointed by the President in consultation with the Chief Justice of India,
the Governor of the state, and the Chief Justice of the High Court (except when
the CJ of HC is to be elected). In 1993 judgement, the Supreme Court created
the Collegium system to which Former Law Minister Kapil Sibal was the lawyer. Under
Collegium system, the executive role was limited to merely objecting the
nominations of the judges. The NJAC will correct these imbalances and bring an
end to usurpation of powers.
It requires 15 state legislatures to pass the Constitutional
Amendment bill and give a lasting cover. After then it would face the test of
apex court whether it is constitutionally fit or unfit. As far as flaws of NJAC
is concerned, it will come on fore with time until then, it’s a milestone in
the right direction.
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