Explainer: NJAC back in limelight, will BJP-led Centre revive it?
Satya Prakash
Tribune News Service
New Delhi, March 30
The recent controversy over the alleged recovery of unaccounted cash from the residence of Justice Yashwant Varma has raised questions of the existing mechanism to ensure judicial accountability.
Amid the ongoing row, Rajya Sabha Chairman Jagdeep Dhankhar reignited the discussion on the National Judicial Appointments Commission (NJAC), stating that had the NJAC Act been implemented, it would have addressed concerns over judicial accountability. His remarks are seen as an attempt to revive the debate on the NJAC Act as a means to tackle the challenges plaguing the judiciary.
Judicial appointment system in India
Article 124 and Article 217 of the Constitution provide for appointment of judges of the Supreme Court and high courts, respectively. They are appointed in consultation with judges of the Supreme Court and high courts as the President may deem necessary for that purpose and in the case of appointment of a judge other than the Chief Justice of India, the CJI shall always be consulted.
Judges’ cases
In SP Gupta vs Union of India of 1981 (First Judges’ Case), the Supreme Court ruled that “consultation” between the President and the judiciary did not require “concurrence” and CJI’s views could be overridden.
In Supreme Court Advocates-on-Record Association vs Union of India of 1993 (Second Judges’ Case), the Supreme Court created the Collegium system comprising of the CJI and two senior-most SC judges to recommend to the President the appointment and transfer of SC/HC judges. It reversed the SP Gupta case ruling that gave primacy to the Executive in judicial appointments.
In the Presidential Reference Case of 1998 (Third Judges’ Case), the top court expanded the Collegium to the CJI and four senior-most judges and said “consultation” under Article 124 meant “concurrence” by the Collegium.
NJAC Act passed to replace ‘opaque’ Collegium system
The Collegium system has been criticised for the lack of transparency and diversity, ignoring merit and inordinate delay in judicial appointments. To deal with these concerns, Parliament passed the 99th Constitutional Amendment Act and the NJAC Act in 2014, establishing a new system for judicial appointments, replacing the Collegium system.
The NJAC consisted of the CJI as ex-officio chairperson, two senior-most Supreme Court judges as ex-officio members, the Union Law Minister as ex-officio member, two eminent persons from civil society selected by a committee of the PM, the CJI and the Leader of Opposition.
SC struck down NJAC Act
A five-judge Constitution Bench in October 2015 struck down the 99th Constitutional Amendment and the NJAC Act by a 4:1 majority on the ground of violation of judicial independence – which is a part of the basic structure of the Constitution. The top court revived the Collegium system. However, it admitted that there were lacunae in the Collegium system that needed to be rectified. In December 2015, it delivered another verdict that recommended measures to make the collegium system transparent.
Dhankhar met floor leaders of various political parties on March 25 to discuss the issue of judicial accountability, but the meeting remained inconclusive. Now, the Leader of the House is expected to meet the floor leaders individually.
The government is said to be awaiting the report of the three-judge in-house committee appointed by CJI Sanjiv Khanna to probe the allegations of recovery of cash at Justice Varma’s residence. It’s understood to be working to build a consensus on the issue of judicial accountability. It would be interesting to see if it attempts to revive the NJAC Act?
