Q. Discuss in detail the position of NJAC in regard to appointment of Judges of Higher Judiciary in India, in the light of recent Supreme Court Judgements.

 

_{Note: this post is a part of our important question answer series on Constitutional Law. You can read other questions by clicking here.}

 

Introduction

Judiciary is an important organ of the Government and in a Constitution, which provides separation of powers between the Centre and the state and an independent Judicial System, the role of Judiciary becomes much more crucial. The Supreme Court of India is considered as one of the very powerful courts in the world. It is the final arbitrator in matters between Centre and state, or between 2 or more states.

Articles 124-147 of our Constitution deals with Supreme Court. Article 124 provides for Constitution and establishment of Supreme Court.

 

Appointment of judges of Supreme Court

In order to understand the present ‘method’ use to appoint a person as a judge of the Supreme Court, we need to divide the period as follows:

I.                     Procedure of appointment of Supreme Court judge before 99th amendment, and

II.                   procedure of appointment of Supreme Court judge after 99th amendment.

 

I.                    Procedure of appointment of Supreme Court judge before 99th amendment:

Before the 99^th Constitutional amendment, Sub-clause 2 of Article 124, which contains the provisions regarding appointment of judges, reads as:

“every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of High Court in the states as the President may deem necessary for the purpose”.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall be consulted.

Here, the phrase “Shall be consulted” became the bone of contention between executive and judiciary. Whether the president is bound with the advice given by the CJI or not, in order to settle this question, brief study of some cases is necessary:

A.      S.P. Gupta v. UOI (judges transfer case, or 1^st judges case):

In this case, the court has decided that word ‘consultation’ meant ‘mere consultation of views’, and it does not mean ‘concurrence of views’. Thus, the President is not bound to act in accordance with such consultation. This case laid down the ‘executive supremacy’ in matters of appointment of Supreme Court judges.

B.      Supreme Court Advocates on Record Association v. UOI (2^nd judges case):

In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgement and held that in the matter of appointment of the judges of the Supreme Court and High Court, the Chief Justice of India should have primacy. It was also held that CJI shall always consult 2 senior most judges before rendering any such advice to the president.

On the question of appointment of CJI, judges refused to directly answer but held that it must be done on the basis of principle of seniority.

This decision thus laid down the judicial Supremacy in the matter of appointment of judges of the Supreme Court.

C.      Third Judge's case, Re-presidential reference case, 1998:

The President, Mr. K.R. Narayana, had sought the Supreme Court’s clarification on the ‘collegium system’ as laid down in judges Transfer case II, following a controversy over the recommendation by then Chief Justice of India M.M. Punchhi.

The Court opined that the Chief Justice must make a recommendation to appoint the Judge of the Supreme Court in consultation with four senior most puisne Judges of the Supreme Court, (collegium), and made it clear that if “two judges give an adverse opinion the Chief Justice should not send the recommendation to the government”. The opinion of the collegium must be in writing and the Chief Justice of India should send the recommendation to the President along with his own recommendations. Moreover, it stated that if the Chief Justice of India makes a recommendation without any complying with the norms and requirements of the consultation process, it would not be binding on the Government of India.

This is how the ‘collegium system’ developed gradually on the basis of Precedence established by three separate cases of the Supreme Court of India. The judges were appointed to the Supreme Court according to this system.

But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and 128 and also inserted article 129 A,124 B and 124 C changes were done in the procedure of appointment of judges of Supreme Court.

 

II.                 Procedure after the 99th amendment of the Constitution:

After the 99^th Constitutional amendment, under article 124(2), It is inserted that every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission referred to in article 124 A.

NJAC, as provided by Article 124 (A), consisted of

A.      Chief Justice of India;

B.      two other senior judges of the Supreme Court;

C.      union law minister

D.      2 eminent people’ to be nominated by the committee consisting of the prime minister, Chief Justice of India and the leader of opposition. 

The above composition clearly states that NJAC has both judicial as well as executive the representatives.

But thereafter, in Supreme Court Advocates on Record Association v. Union of India, the Supreme Court struck down NJAC act as ‘unconstitutional and void’. The Court declared that the ‘NJAC’ act violates the basic features of Constitution, hence should be struck down with immediate effect.

As a result of this decision, the position as it stood prior to the constitution 99th amendment act i.e. ‘collegium system’ got revived.

 

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