National Judicial Appointments Commission

For the commission in England and Wales, see Judicial Appointments Commission.
National Judicial Appointments Commission, 2014
Parliament of India
An Act further to amend the Constitution of India.
Citation 99th Constitutional Amendment Act
Territorial extent India
Date assented to 15 August 2014
Date commenced 31 December 2014
Date repealed 16 October 2015
Status: Repealed

National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.[1][2] The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission.[3][4][5][6] The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014.[7] The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.[8][9][10][11]

On 16 October 2015 the Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner.[12][13] Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it

Constitution of the National Judicial Appointments Commission

A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition

As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:

These (two) eminent persons would have been nominated by a committee consisting of the

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

Procedures to be followed by the Commission

The National Judicial Appointments Commission Bill, 2014, had laid down the following procedures for the selection of the Judges of the higher judiciary.

Procedure for Selection of Supreme Court judges

Chief Justice of India

The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he/she is considered fit to hold the office.However, this must be according to the knowledge one possess rather than the age.

Supreme Court Judges

The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.

The Commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Procedure for Selection of High Courts judges

Chief Justices of High Courts

The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other High Court Judges

The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Challenge to the constitutionality

The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer associations and groups before the Supreme Court of India through Written Petitions.[14] Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging the validity of NJAC on the ground that the challenge was premature as the constitutional amendment and the NJAC Act had not been notified then.[15] After the fresh challenge in 2015 after the acts were notified, a three judge bench of the Supreme Court referred the matter to a Constitution Bench.[16]

SC declares NJAC unconstitutional

In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 had struck down the NJAC Act, 2014 meant to replace the two-decade old collegium system of judges appointing judges in the higher judiciary.[17][18] The judgement was hailed by lawyers Prashant Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jaya Prakash Narayana opposed it.[18][19][20]

Later Developments

On 3 November 2015 the Supreme Court upheld that it is open to bringing greater transparency in the collegium system within the following existing four parameters, with opinions from both the parties(petitioners who challenged the NJAC and the government).[21][22]

On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court that the central government will not prepare a draft memorandum for judicial appointments contrary to committed earlier and suggested the same to be done through a judgement.[23]

See also

References

  1. ↑ "The Constitutions (Ninety-ninth) Amendment) Bill, 2014" (PDF). Govt, of India. Retrieved 15 August 2014.
  2. ↑ "Rajya Sabha Passes First NJAC Bill". Bloomberg TV India.
  3. ↑ "National Judicial Appointments Commission Bill, 2014" (PDF). Retrieved 15 August 2014.
  4. ↑ "National Judicial Appointments Commission Bill, 2014". PRS Legislative Research. Retrieved 15 August 2014.
  5. ↑ "The Constitution (121st Amendment) Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  6. ↑ "National Judicial Appointments Commission Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  7. ↑ "New judicial panel gets President's nod, collegium system ends". Times of India. PTI. 31 December 2014. Retrieved 1 January 2015.
  8. ↑ "National Judicial Appointments Commission – Overview". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  9. ↑ "Constitution (Ninety-ninth Amendment) Act, 2014" (PDF). Gazette of India. Retrieved 14 April 2015.
  10. ↑ "National Judicial Appointments Commission Act, 2014 (40 of 2014)" (PDF). Gazette of India. Retrieved 14 April 2015.
  11. ↑ "NOTIFIED: Constitution (Ninety-ninth Amend) Act, 2014 & National Judicial Appointments Commission Act, 2014". 1, Law Street. 13 April 2015. Retrieved 30 April 2015.
  12. ↑ "Supreme Court Advocates-on-Record - Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF 2015)" (PDF). Supreme Court of India. 16 October 2015. Retrieved 17 October 2015.
  13. ↑ "Supreme Court upholds collegium system of appointment of judges, rules NJAC unconstitutional". IBN Live. 16 October 2015.
  14. ↑ "NJAC Act and 99th constitutional amendment faces challenge at Supreme Court; petitions by AoR Association and Senior Advocates". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  15. ↑ "NJAC premature challenge dismissed by the Supreme Court". 1, Law Street. 25 August 2014. Retrieved 3 June 2015.
  16. ↑ "Supreme Court refers NJAC Challenge to Constitution Bench – SCAORA v. UOI". 1, Law Street. 8 April 2015. Retrieved 3 June 2015.
  17. ↑ "SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]". 1, Law Street. 16 October 2015. Retrieved 21 October 2015.
  18. 1 2 "SC declares NJAC unconstitutional, upholds Collegium". THE HINDU. 16 October 2015.
  19. ↑ ""India has taken a step backwards by retaining the collegium" - Senior Advocate KK Venugopal". Bar & Bench. 20 October 2015. Archived from the original on 21 October 2015. Retrieved 21 October 2015.
  20. ↑ "From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act". FIRSTPOST. 16 October 2015.
  21. ↑ "SC asks Centre to compile views to improve judge appointments". The Hindu. 3 November 2015.
  22. ↑ "Collegium system will remain in existing parameters, says Supreme Court". IBN Live. 3 November 2015.
  23. ↑ "AG pulls out of drafting procedure to appoint judges". The Hindu. 19 November 2015.

[1]

  1. ↑ Arguments and COunter Arguments before SC ;http://www.livelaw.in/njac-conundrum-re-cap-of-arguments-and-counter-arguments-with-written-submission/
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