About NJAC Act

The parliament had passed unanimously the NJAC Act, 2014 and the 99th Constitutional Amendment Act. Both these acts were meant to replace the two-decade-old collegium system of judges appointing judges in the higher judiciary.

These Acts were passed in order to bring transparency in the appointment of Judges and give elected public representatives a role in the entire appointment process. The Constitutional Amendment Act was later ratified by 20 State Assemblies and had received the Presidential assent on 31 December 2014 and came effective from April 2015.

NJAC

Composition of NJAC

As per Article 124A, NJAC is a six-member constitutional body consisting of the following:

  • Chairman – Chief Justice of India
  • Members – Two senior most Judges of the Supreme Court
  • The Union Minister of Law and Justice
  • Two other eminent persons (Two eminent persons will be nominated by the committee led by Prime Minister of India, the CJI, and Leader of Opposition in the House of People).

Functions of NJAC

As per 124B Functions of NJAC are:

  • To recommend persons for the appointment as CJI, Judges of SC, Chief Justices and other Judges of High Courts.
  • To recommend a transfer of Chief Justices and other Judges HCs from one High Court to another High Court.

What to Know?

Part 1: A brief view of the NJAC Act and the key amendments proposed with regard to the act.

Part 2: Why was the act struck down? How it affected the judicial supremacy? What’s the way out to fill these vacancies?

Context

The Supreme Court has dismissed the review petition challenging striking down of Constitutional Amendment that sought to give the executive a say in the appointment of top judges, on grounds of delay and lack of merit.

Background

On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the Constitution Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would impede the independence of the judiciary.

The majority said that the two laws affect the independence of the judiciary and judicial appointments, among other things, and should be protected from executive control. Supreme Court has declared the National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitutional Amendment Act, 2014 unconstitutional and void.

About NJAC and the Act

NJAC is a body responsible for the appointment and transfer of the judges to the higher judiciary in India. JAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and 24 High Courts with judicial appointments commission wherein the executive will have a say in appointing of judges.

A new article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.

The Bill provided for the procedures to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of the High Courts (HC).

According to the Bill: Members of the Commission

  • Chief Justice of India (Chairperson, ex officio)
  • Two other senior judges of Supreme Court next to the Chief Justice of India – ex officio
  • The Union Minister of Law and Justice, ex-officio
  • Two eminent persons (to be nominated by a committee consisting of Chief Justice of India, Prime Minister of India and the Leader of opposition in Lok Sabha or when there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that out of the two eminent persons, one person would be from the Scheduled Castes(SC) or Scheduled Tribes(ST) or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination as per the act.

Conclusion

To conclude, it may be said that the NJAC may be a step ahead of collegium system in terms of its judicial accountability, but the fact remains that there is a very thin line between the judicial accountability and dilution of the Independence of the Judiciary.

Although no other country in the world leaves judicial appointment solely to the judiciary, there are several balances and methods to protect the Independence of the Judiciary.

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