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National Judicial Appointments Commission (NJAC)  is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.

 About NJAC and the Act:

  • A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).According to the bill the commission will consist of the following members:Chief Justice of India (Chairperson, ex officio)Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officioThe Union Minister of Law and Justice, ex-officioTwo eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha).Provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman.The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

  •  In a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control. NJAC: a missed opportunity
  • Enactment of the 99th Amendment was intended at redressing the imbalance created by the verdict of court in second judges case.NJAC would have been a more broad-minded forum, providing a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons (eminent persons) outside the constitutional framework.NJAC could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary, and rebuild public confidence in the system.

  •  Issues with collegium:
  • It is opaque and lacks transparency, with its members working as if in a cabal.Collegium is not accountable to any other authority.The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings are some of the evidence.The decision to create a Collegium in the first place was fraught with concerns.Justice Krishna Iyer described this judgment as “an egregious fraud on the Constitution”.No one knows how judges are selected, and the appointments made raise the concerns of propriety, self-selection and nepotism.

  •  Way Forward:Supreme Court could have amended the NJAC Act to have safeguards that would have made it constitutionally valid and reorganized the NJAC to ensure that the judiciary retained majority control in its decisions.Until a better mechanism is evolved, the Supreme court can take steps to make collegium more transparent and accountable to make its functioning democratic.


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