EXPERTS REVIEW#2#NJAC Special

THE "NJAC  v. COLLEGIUM" DEBATE

Accountability of public offices is the very essence of democracy as the authority without responsibility is anti-thesis of constitutionalism. Judiciary-Executive friction is not new as the question regarding the appointment of judicial officers has been bothering not just the top echelons of judiciary but the executive too. 

The long-pending demands for transparency and accountability of judges was introduced in the Constitutional Bills i.e. The National Judicial Appointments Commission (NJAC) Bill 2014 and The Constitution (One Hundred and Twenty First Amendment) Bill, 2014 which were passed by the Lok Sabha on 13th August 2014 and by Rajya Sabha on 14th August 2014 seeking to substitute the present collegiums system for appointment of Judges to the higher judiciary.

 The Government prescribed that judges should be appointed by 6-member NJAC, headed by the Chief Justice of India, two senior most Supreme Court judges, the Union law minister and the two ‘eminent’ persons. With a host of clauses and riders, the act was accorded presidential assent on the last day of 2014 and the NJAC was notified in April 2015.

 But from January, a batch of petitions, led by the Supreme Court Advocates on Record Association, started claiming that NJAC tinkered with the independence of the judiciary and that many of its provisions were unconstitutional. They wanted the collegium system back with greater transparency. But even before the ink is dry on the two bills, petitions have been filed in the Supreme Court challenging their constitutionality on the ground that they have violated the basic structure of the Constitution i.e. independence of judiciary. 

The challenge is rather an unusual one, in as much as for the first time a bill is challenged before it has actually become a law.

 On 16th October 2015, there was gunpowder in the air and then the gavel swung like an axe: “The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void; the National Judicial Appointments Commission Act, 2014 is declared unconstitutional and void; the system of appointment of judges to the Supreme Court, chief justices and judges to the high courts… called the “collegium system”, is declared to be operative.”

 The Supreme Court was right in reiterating that independence of judiciary is the basic structure of the Constitution. But then, judges must appreciate that it is not an end in itself. Judicial appraisal is a delicate and difficult issue. At stake is the integrity, merit and judicial independence. 

Though NJAC Act 2014 has been passed by due process of amendment as contained under Article 368 of Constitution still Supreme Court has expressed its doubts that it will be interference in independence of Judiciary and violation of Basic Structure of Constitution. 

 About The Writer:

Prof. Rattan Singh holds a coveted position as a senior Professor in University Institute of Legal Studies, Panjab University, Chandigarh. He is a proficient teacher having expertise in Constitutional law, Administrative law and research methodology. His two projects have been awarded by the UGC and he has also authored two books, "Socio-Economic Offences in India" and "Legal Research Methodology". He is also an alumini of Guru Nanak Dev University Amritsar.