Explainer: Will government revive National Judicial Appointments Commission Act?

The recent controversy over recovery of unaccounted cash from the residence of Justice Yashwant Varma in Delhi during a fire incident on March 14 has raised questions of the current mechanism to ensure judicial accountability.

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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.”

 Dhankhar’s statement is seen as an attempt to revive the National Judicial Appointments Commission (NJAC) Act to deal with the malaise afflicting the Indian 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 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.

Judges’ Cases

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.

In Supreme Court Advocates-on-Record Association vs Union of India (Second Judges’ Case - 1993), the Supreme Court created the ‘Collegium System’ comprising the CJI and two senior-most Supreme Court judges to recommend to the President the appointment and transfer of Supreme Court and High Court judges. It reversed the SP Gupta case ruling that gave primacy to the Executive in judicial appointments.

In the Presidential Reference Case (Third Judges’ Case -- 1998), the top court expanded the Collegium to the CJI and four senior-most judges and said that “consultation” under Article 124 meant “concurrence” by the Collegium.

NJAC Act passed to replace opaque Collegium system

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 99^th 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 Prime Minister, the CJI and the Leader of Opposition.

SC struck down NJAC Act

However, a five-judge Constitution Bench in October 2015 struck down the 99^th 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.

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?