The Centre on Monday notified laws for setting up a six-member National Judicial Appointments Commission (NJAC) to replace the two-decade-old collegium system for appointing Supreme Court (SC) and High Court (HC) judges. The collegium, comprising Chief Justice of India and four senior judges came into effect by a 1993 SC order that ended the upper hand enjoyed by the executive in appointing judges. The move came just two days ahead of a crucial hearing in SC to decide the constitutional validity of the two notified Acts — 99th Constitutional Amendment Act and NJAC Act.
Although the two enactments were notified in the Gazette in December last year, the collegium system continued to exist as the laws were not notified. The lack of notification also became a subject of debate when the three-judge Bench of the apex court first took up the bunch of petitions challenging NJAC. The petitioners argued that even without a notification, the law can be challenged as both Houses of Parliament had passed it. But the Centre opposed calling the petitions premature. The Bench referred the matter to a five-judge Bench without issuing any stay on the operation or notification of the law.
Experts are of the view that while the collegium may have come to an end, it may be a gradual taking over as the NJAC will require time to set up. A law officer on condition of anonymity said: “The composition of NJAC requires CJI and two senior-most judges in the panel. One of the senior-most judges, a likely member,is heading the five-judge Bench to decide the constitutional validity of the NJAC Act and the Constitutional Amendment Act.”
The officer further said that the two experts to be appointed on the NJAC panel by a committee comprising the CJI, Prime Minister and leader of Opposition will also be on hold pending con sideration of the law in court. In addition, even the NJAC Rules governing the procedure for holding meetings and its procedures need to be ratified.
The presence of law Minister as an ex-officio member of the NJAC panel has drawn sharp criticism from some of the petitioners challenging the new law. The Supreme Court Advocates on Record Association, the Bar Association of India and individual lawyers have attacked the NJAC on grounds that it impinges on the independence of the judiciary, lowers the primacy enjoyed by CJI, allows judiciary’s choice to be vetoed by two persons in NJAC panel, among other grounds.
However, the Supreme Court Bar Association and few eminent lawyers have backed the NJAC claiming that appointments made by collegium lack transparency and smack of nepotism and bias. For this reason, they favour NJAC being a mix of executive and judiciary as an effective experiment to restore purity and transparency in judicial appointments.