NATIONAL JUDICIAL APPOINTMENT COMMISSION

INTRODUCTION

The three organs of government are Legislature, Executive & Judiciary. Each organ has its different and different tasks to do so. Legislature makes the law, Executive executes the law prepared by the Legislature while Judiciary interprets the law.

Judiciary plays a very important role in settling any conflict which sometimes arises in our Indian Constitution. Judicial system of our country is so strong that every citizen believes that it will do complete justice and performs its tasks fairly.

So in accordance to interpret and apply law, competent Judges have to be selected so that fair judgements can be delivered by them which not only decides a particular case but also becomes precedents to other future arising cases as well.

Thus, it is very important to appoint the judges very carefully and wisely.

HISTORY OF APPOINTMENT OF JUDGES

Appointment of Judges is a very debatable topic which can be witnessed both in Pre-Independence times as well as post-Independence period.

At the time of the implementation of the Constitution in 1950, the President of India appointed the members of the Supreme Court of India and the High Courts of India after consulting the Chief Justice.This appointment process was carried out till 1973.

However, a pattern emerged, according to which the Chief Justice of India would be chosen from among the Supreme Court of India's senior judges. Since the interpretation of the Constitution in its original form necessitates knowledge, experience and expertise, judges are appointed on the basis of their superior qualifications.

In year 1973, the government has appointed Justice A N Ray as Chief Justice of India which superseded his 3 seniors judges of the Supreme Court. This happened again in 1977 when another Chief Justice was appointed by the Government of India replacing other senior judges. This led to a clash between the executive and the judicial system.

As a result, it gave rise to the formation of Collegium System for judicial appointments of judges of Supreme court and High Courts which was later followed by the formation of National Judicial Appointment Commission.

TIMELINE OF CASES BY WHICH NJAC FORMED

The procedure for the appointment of Supreme Court and High Court judges, there have been several objections raised. The problem is with the Executive's arbitrary interfering in the selection of judges. As a result, several petitions have been submitted, and numerous important decisions have been made during that process.

? FIRST JUDGES CASE:- In (1982) case S. P. Gupta’s Case , The question was posed to the Supreme Court as to whether the concept of consultation within the meaning of Article 124 of the Constitution of India entailed a form of concurrence. The Court of First Instance clarified that a High Court Judge may be transferred to another High Court even if he does not wish to be transferred. However, the Chief Justice clarified that the concept of consultation does not entail concurrence and that the Chief Justice's opinion does not have any effect on the President. The Supreme Court held this position from 1982 to 1993.

? SECOND JUDGES CASE:- In (1993) case Supreme Courts Advocates on Record Association , The Supreme Court of India reversed its prior ruling in this matter, which was made in the S.P. Gupta case. The Chief Justice of India's recommendations to the President are mandatory on the President to follow and the word in the constitution i.e. consultation means concurrence. Therefore, Chief Justice opinion shall enjoy primacy.

By this case, Collegium system is evolved. It is further stated that Chief Justice of Supreme Court shall appoint judges of Supreme Court and Chief Justice of High Courts shall appoint judges in High Courts accordingly.

? THIRD JUDGES CASE:- In this (1998) case , The Supreme Court has clarified that the process of appointing a Chief Justice of India for the Supreme Court vacancy must be initiated by the Chief Justice. The Chief Justice is required to consult with the 04 Senior-Most Judges of the Supreme Court and this collegium is expected to deliberate on the proposed candidates. The President is then required to adopt the recommendations.

However, The important issue of High Court judge appointments comes up. According to the Supreme Court's ruling in this presidential reference, the Chief Justice of India need only consult the two seniormost Supreme Court judges while choosing a judge for the High Court. In order to decide and propose a candidate to the President for appointment as a judge of the High Court, the Chief Justice of India, together with the two senior most Supreme Court justices, would work as a collegium.

FORMATION OF NATIONAL JUDICIAL APPOINTMENT COMMISSION

The Constitution 99th Amendment Act, 2014 was passed by the legislature to formulate National Judicial Appointment Commission.

The NJAC 2014 legislation provided for the establishment of a commission that would be responsible for selecting judges for the various high courts and the Supreme Court.

The National Judicial Commission is headed by the Chief Justice of India. It also includes the Union Law Minister, the Leader of the Opposition in the Lok Sabha, and two other individuals who are nominated by a committee.

The Commission has the responsibility to suggest persons for selection as the Chief Justice of India, Supreme Court Judges, Chief Justices of High Courts, and Judges of High Courts. It is also tasked with recommending the Chief Justice and Judges of High Courts' transfer to another High Court.

According to the National Judicial Appointments Commission Act of 2014, the Chief Justice of India may only be appointed if he or she is the senior-most Supreme Court judge.

The Commission may choose individuals who meet the requirements of Article 217(2) of the Indian Constitution and submit their names for the Chief Justice of the High Court's consideration. The Chief Justice must consult the 2 senior-most judges of the High Court before sending the names and before asking the Governor for his or her opinion. Before issuing a proposal, the Commission ought to seek the opinions of the Governor and the Chief Minister of the State. If 02 members have different opinions on a person, the same recommendation should not be made.

WHY NATIONAL JUDICIAL APPOINTMENT COMMISSION WAS FORMED?

Collegium failed due to a lack of transparency and fairness, thus it was necessary to establish a body that would attract qualified judges for the efficient administration of justice. Even Supreme Court members who were part of the collegium, an institution that has existed for 20 years, have harshly criticized it.

The primary complaint is that there is no transparency. The collegium of the Supreme Court has furthermore been charged with abusing its position to elevate some lawyers or close relatives to the position of High Court judges. Appointments to the Supreme Court have been delayed or denied due to proximity and personal rivalry.

It has been stated by the Attorney General of India that the National Judicial Appointments Commission is subject to the Right to Information Act, the National Judicial Appointments Commission is an appropriate option in this case.

Citizens can obtain information about how the National Judicial Appointments Commission Act's judicial system operates. As a result, the judiciary's administration of justice will become more open and accountable.

Also, there are several cases where President has denied the appointment of certain judges, but the collegium restate the decision and appoints the judges.

WHY NATIONAL JUDICIAL APPOINTMENT COMMISSION WAS STRUCK DOWN?

In a 4:1 split, the five-judge bench struck both the 99th Constitutional Amendment Act and the National Judicial Appointments Commission Act. The National Judicial Appointments Commission Act was declared unconstitutional and repealed due to how it interfered with the judiciary's independence.

A 05-judge bench commonly known as the Fourth Judges Case decided to strike down the National Judicial Appointments Commission Act in 2015. Instead stating that the collegium system is accurate and that the procedure of "judges appointing judges" should be seen very carefully, the 5-judge bench concluded that the collegium system shall continue be used in the appointment of Supreme Court judges and High Court judges.

Following points which Justice Kehar Singh raised on strucking down National Judicial Appointment Commission Act are as follows:-

1. Judges could believe that they must repay the political executive as a condition of being appointed to the position of judge, which might create a situation where the appointment of judges is influenced by political reasons.

2. The NJAC Act would violate the guarantee of judicial independence provided by the current collegium structure. The judiciary's exclusive responsibility for selecting judges is enshrined in the Constitution's fundamental design.

3. He bluntly stated that the collegium system is opaque since the public cannot view its proceedings, which results in a lack of openness.

CONCLUSION

In my opinion, The National Judicial Appointment Commission needs to be amended to keep the judiciary independent. It should not give exclusive power to the legislature and executive.

Since the collegium system lacks transparency and fairness, the new Act should be transparent in the selection of the judges of the Supreme Court and High Courts.

The Supreme Court should also lay down some guidelines in appointing judges of the Supreme Court and High Courts and they should be followed strictly.

The guidelines should be formed in a way that it should not discriminate the notions of democratic country. And the notification shall be published in open courts so that citizens or the public can also access to them.

The only possible situation is to amend the National Judicial Appointment Commission Act in such a way that would not against public opinion and as per the Constitutional provisions etc.