(Article) National Judicial Appointments Commission

National Judicial Appointments Commission

National Judicial Appointments Commission (NJAC) is a proposed body to be responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission is established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC replaced the collegium system for the appointment of judges. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Lok Sabha and the Rajya Sabha to regulate the functions of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India on 31 December 2014.

Composition

The Commission will be a six member body and will include:

Chief Justice of India (Chairperson, ex officio)
Two other senior judges of the Supreme Court next to the Chief Justice of India.
The Union Minister of Law and Justice.
Two 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.

Functions of the Commission

The functions of the Commission include the following:

Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act

Reference to Commission for filling up of vacancies

When a vacancy arises in the SC or HCs, the central government will make a reference to the NJAC. Existing vacancies will be notified to the NJAC within thirty days of the Act entering into force. When a vacancy arises due to the completion of term, a reference will be made to the NJAC, six months in advance. For vacancies due to death or resignation, a reference must be made to the NJAC within thirty days of its occurrence.

Procedure for Selection of Supreme Court judges

For appointment of Chief Justice of India, the NJAC shall recommend the senior most judge of the Supreme Court for appointment as Chief Justice of India. For appointment of SC judges, the NJAC shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations. The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Procedure for Selection of High Courts judges

Chief Justices of HCs: The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

For appointment of other HC Judges, nominations shall be sought from Chief Justice of the concerned High Court. The Commission shall nominate names for appointment of HC judges and forward such names to the Chief Justice of the concerned HCs for his views. In both cases, the Chief Justice of the HC shall consult two senior most judges of that HC and any other judges and advocates as specified in the regulations.

The NJAC shall elicit the views of the Governor and Chief Minister of the state before making recommendations.

The NJAC shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Transfer of Chief Justices and High Court judges

The NJAC is to make recommendations for transfer of Chief Justices and other judges of the High Courts.

Power of the President to require reconsideration

The President may require the NJAC to reconsider the recommendations made by it. If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.

Why NJAC is better than the collegium system?

The biggest criticism of the collegium system is that judges appoint themselves without being accountable to anybody. The NJAC will bring about transparency and accountability in appointments and transfer of judges.
Transparency:

The NJAC will ensure transparency because of an organised procedure for the appointments by means of consultations from among all organs of the government. This was not possible with collegium system where appointments are more of back-door operations and no specific mechanism or criteria for selection of candidates.

Accountability:

Since the NJAC consists of Chief Justice of India (CJI), Law minister and Opposition leader has a say there is no scope or less scope of political influence towards any appointment and the NJAC is answerable to every appointment.

Faster Appointments :

NJAC will be estimating the potential vacancies in the near future and 6 months before the vacancy can happen which makes it easy for a fresh appointment immediately. This further adds to the speedy justice delivery too.

Criticisms of the NJAC

The judiciary was not consulted while formulation the concerned law.
The NJAC diminishes the judiciary's role in the appointment of judges.
It is wrong to give the executive (or politicians) a voice in judicial appointments. It will affect the independence of judiciary.
The main objection for the collegium system is that the lack of transparency, the lack of objective criteria and there is no objective criteria in the new system being established.
One of the apprehensions is that the key elements in the selection process are not embedded in the Constitutional Amendment and are either in the parliamentary Act or in delegated regulations – both of which can be changed easily.

References: Wikipedia, PRS, The Hindu, The Indian Express