The Supreme Court on Friday struck down the National Judicial Appointments Commission (NJAC) that was aimed at replacing the two-decade-old collegium system of appointing judges in the higher judiciary.
A five-judge bench, headed by justice JS Khehar, had reserved its judgement on July 15 after a marathon hearing for 31 days on the issue of validity of the 99th constitutional amendment and the NJAC act.
The petitions challenging the new legislation were filed by Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law encroached on judicial independence.
Here’s all about the NJAC:
What is the NJAC?
The NJAC propose a transparent and broad-based process of selection of judges of the Supreme Court and high courts. They were to be selected by the commission whose members were be drawn from the judiciary, legislature and civil society.
How were judges appointed before?
The Constitution’s Articles 124 and 217 dealt with the appointment of judges of the higher judiciary. According to these articles, judges could be appointed by the President of India after consulting the Chief Justice of India (CJI) and other judges.
The word “consultation” is significant because in 1993, in the Second Judges case, the SC decided that the CJI must agree to all judicial appointments. This created the collegium system, wherein the three seniormost Supreme Court judges decided on who would be a high court or Supreme Court judge.
What was to be the role of NJAC ?
It would have replaced the collegium. With the NJAC amendment, Articles 124 A, B and C were added to the Constitution to make the NJAC valid.
Articles 124 A and B define the NJAC, its members and their duties, while Article 124 C empowers Parliament to make laws in the future to regulate the procedure for the appointment of judges.
Who would have been on the NJAC?
The CJI was to head the six-member commission, other members of which would have been the law minister, two senior Supreme Court judges and two eminent people.
A collegium comprising the Prime Minister, the CJI and the leader of the single largest party in Lok Sabha would have selected the two eminent people. One eminent person would have been nominated from among the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women.
How did the collegium system come about?
The collegium system evolved after three landmark judgements of the SC known as the ‘three judges cases’: the first, second and the third judges cases.
The first judges case was the SP Gupta case. It decided on December 30, 1981, that the President could, with sensible reasons, refuse judges’ names recommended by the CJI. This gave the executive more power than the judiciary in the appointments process.
In the second judges case, a nine-judge bench of the SC went the other way and created the collegium by reversing the first judges case: the majority verdict written by justice JS Verma in the Supreme Court Advocates on Record Association vs the Union of India case on October 6, 1993, said that the CJI must be given the primary role in judicial appointments.
However, the three judges ruling in this case could not agree on the precise role of the CJI in the process, leading to years of confusion surrounding the appointment and transfer of judges.
The last judgement in the series, the 1998 third judges case, cleared things up after the President asked the Supreme Court to do so. In this case, the SC came up with nine guidelines on how the collegium system should function. It cemented the supremacy of the judiciary in the appointment and transfer of judges.