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Comparative Study of the Collegium System and the National Judicial Appointment Commission

Mar. 13, 2022   •   Suryasikha Ray

Profile of the author: By Aaryan Wadhawan, UPES, School of Law, 2nd Year.

Introduction

Both Collegium System and the National Judicial Appointment Commission have created a rift between the ideologies of the Judiciary and the Executive. The greed for power has been clearly visible in the scenario where the Judiciary and Executive are fighting to decide the appointment of judges. Independence of the Judiciary is essential for any democracy but it does not allow the pillars of the government to create an empire with an empire (Imperium In Imperio). On the Executive side of the argument, they believe that the Collegium System is being misused by the Judiciary which leads to the appointment of judges which is in the favour of The Collegium. On the Judiciary side of the argument, they fear the involvement of the Executive in the judicial chores will act as a threat to the Basic Structure of the Constitution as well as to the independence of the judiciary. The question of the appointment of judges garnered attention when the famous Three Judges Case knocked on the doors of the court. It led to a vigorous change in the process of the appointment of judges. In order to understand it better, let's discuss the Three Judges:

Case in brief: The Three Judges Case, 1982

First Judges Case 1982

Before 1982, Advise of the judiciary in the matter of appointment of judges wasn’t binding. The executive had more power than the Judiciary. Judges were appointed with the procedure laid down in Article 217 and Article 124 of the Constitution of India. Article 214 states that every Supreme Court Judge will be appointed by the president after consulting with the CJI and other Supreme Court judges and the High Court judges will be appointed by the President after consulting the CJI, Governor of the particular state and Chief Justice of that High Court. The executive had more power compared to the judiciary. Judiciary was considered an advisory committee whose advice was not binding. The word “Consult” word was highly debated in the constituent assembly too. The Bench of 7 judges held that ‘Consultation’ did not mean ‘Concurrence’; it only implies an exchange of views.

Second Judge Case 1993

In the Second Case, The Court reversed its earlier decision and altered the meaning of the word Consultation to Concurrence. Simply means, the Advice given by CJI to the President is binding in the matters of appointment of the judges of the Supreme Court and High Court India. The CJI will deliver his advice only after discussing it with 2 senior-most judges of the SC.

Third judge case 1998

The third Judge Case of 1998 laid down the formation of the Collegium System. The court held that the CJI is supposed to consult the collegium 4 senior-most judges to constitute the consultation process.

The Collegium System

The Collegium system is a forum which decides the appointments and the transfer of the judges. The Collegium is formed by the CJI and the 4 senior-most judges of the Supreme Court. It was born from the “Three Judges Case” which allowed the CJI to have a say in the appointment of the judges. Due to the implementation of the Collegium system, the judiciary says of the judiciary was given higher emphasis than the Executive. It was also observed that the President merely approves the choice of the Collegium, meaning that the advice of the President was not binding.

Criticism of Collegium System

Critics believe that the Collegium system is a closed-door affair and it lacks transparency. They also observed that In matters of such seriousness, Collegium shouldn’t comprise of judges on the basis of seniority but on the basis of talent and skill. Some Said that the Collegium System and its “exclusivity” had sidelined talented junior judges and advocates who deserve higher involvement. Critics argued that the judiciary was given extra power in deciding the judges and they questioned the nepotism which could’ve been involved.

National Judicial Appointment Commission

Keeping in mind the criticism received by the Collegium System, congress led UPA decided to go forward with NJAC. Further, the BJP led NDA which was in power at that time also took cognizance of the issue and moved forward with the passing of NJAC as the new Judicial Appointment Committee of the Judges. It involved both the Judiciary and Executive which encompasses a sense of balance between the powers which both the branches of the accommodate. NJAC constitutes 6 members. Wherefrom the side of the Judiciary there’s the CJI of India and 2 senior-most judges of the Supreme Court. From the side of the Executive, there’s the Law Minister of India and 2 important people in the executive. decides to go with. The 2 members are mostly from the government itself in order to maintain the balance. The final decision has to include the agreement of 3+1 members for the appointment of Judges. NJAC was included in the constitution by the 99th amendment in 2014. It came into force on April 13, 2015.

By the virtue of Judicial Review, Judiciary expressed their fears regarding the involvement of the Executive in NJAC which poses as a threat to the independence of the judiciary. NJAC was said to be Null and Void by the Judiciary. Judiciary wanted to go forward with the Collegium System.

Criticism of National Judicial Appointment Commission

Just like the Collegium System, NJAC too received a lot of criticism. Critiques said that similar to the Collegium System, NJAC fails to be a neutral body. NJAC is supposed to have two ‘prominent citizens’ and the Law Minister of India from the Executive side. The Non-Clarity of who the Prominent Citizens are gonna be has imposed a lot of questions on the functioning of the NJAC. They were questions regarding the Veto Power which was given to the members of NJAC. If any two members veto a nomination or decision, the appointment is not made. Meaning, that even if two members of NJAC have an objection, the matter will be dropped immediately.

CONCLUSION

Both the commissions, the Collegium and NJAC have flaws and need reforms. in article 214 of the Indian Constitution, it is clearly mentioned that the President appoints the Judges after consultation with the CJI meaning that the framers of our Constitution believed that there must be a balance between the powers provided to the Judiciary and the Executive. On the contrary, Dr B. R. Ambedkar stated that the Judiciary must be independent of the Executive and Legislature and should be capable of functioning on its own. In order to stop the notion of ‘Judges Appointing Judges’, a change is required which gives equal powers to both the Judiciary and Executive.

Disclaimer: The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government, or institution.


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