Explainer: Will government revive National Judicial Appointments Commission Act?
The Rajya Sabha Chairman Jagdeep Dhankhar on March 21 said, “That historic legislation (NJAC Act) endorsed by this Parliament with unprecedented consensual support unknown to parliamentary history of this country dealt with the malaise very severely. If the malaise had been dealt with perhaps we would not have countenanced such kind of issues.”
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 such of the Judges of the Supreme Court and of the High Courts in the States 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.
In S.P. Gupta vs Union of India (First Judges’ Case - 1981), the Supreme Court ruled that “consultation” between the President and the judiciary did not require “concurrence” and CJI’s views could be overridden.
The Collegium system has been criticised for 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.
However, 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 of judicial appointments. 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.