The old collegium system has made way for the national judicial appointments commission bill, 2014. but hurdles remain
By Shailendra Singh
THE passage of the National Judicial Appointments Commission (NJAC) Bill, 2014, has been fraught with hiccups and could take some time to see the light of day. The latest salvo came on January 5, 2015, when a petition was filed in the Supreme Court by the executive committee of Supreme Court Advocates on Records Association. It challenged the legality and constitutional validity of the NJAC Act, 2014 and the Constitution (121st Amendment) Bill, 2014. This was barely a week after Pranab Mukherjee accorded his assent to them.
(Featured image) Ravi Shankar Prasad had introduced NJAC and 121st Constitutional Amendment bills in parliament last August; the bills have been approved by President Pranab Mukherjee; Prof. Bhim Singh has gone to the apex court with objections to both
The plea was filed by Prof Bhim Singh, senior advocate and chief of the Jammu and Kashmir National Panthers Party. It contended that the new system would result in excessive dominance of the executive in appointment of judges to the superior judiciary and the recommendation of the chief justice of India (CJI) would be reduced to mere suggestion. It further said the new process may jeopardize the appointment of judges in higher courts, resulting in further delay of justice to the common people.
The NJAC Bill lays down the procedure to be followed for recommending persons for appointment as CJI and other judges of the Supreme Court, and chief justice and other judges of high courts. It was introduced in the Lok Sabha on August 11, 2014, by the then minister of law and justice, Ravi Shankar Prasad, in conjunction with the Constitutional (121st Amendment) Bill, 2014, meant to establish the NJAC.
With the president giving his assent, the executive will now get an equal role in the appointment of judges to the highest judiciary. As per the constitution, a constitution amendment bill needs to be ratified by at least 50 per cent of state assemblies and this too was done recently by the legislatures of 15 states.
OUT WITH THE OLD
With the setting up of NJAC, the two-decade-old collegium system that gave judiciary the sole power for appointing judges to the higher judiciary will end. The NJAC will have the CJI as chairperson and two senior-most judges of the SC as members, apart from the union law minister and two eminent personalities, one of whom would be nominated from among the Scheduled Castes, the Scheduled Tribes, mi-norities, Other Backward Classes or women.
The petition said that under NJAC, the executive will have dominance over judges’ appointment, and the approval of CJI will be reduced to mere suggestion.
Both the 121st Constitutional Amendment Bill and the NJAC Bill have been subjects of litigation in the apex court. Last year, shortly after parliament passed the NJAC Bill, five PILs were filed, seeking to declare the bill as unconstitutional as it violated the basic structure of the constitution by infringing on judicial independence.
The Supreme Court observed that such a challenge was “premature” for the court to in-tervene as the 121st Constitution Amend-ment Bill was yet to be ratified by the states. The bench further said that the parties could move the apex court on the same ground at an appropriate stage.
Despite many of the hurdles being cleared, the NJAC Act may not come into force immediately. As per a government of India gazette, the act shall come into force on a date the central government may, by notification in the official gazette, declare.
But for that to happen, the government will first have to select two eminent persons as members of the commission.