The Supreme Court and the Centre are at odds over how judges should be appointed in the higher judiciary. In the recent weeks, the government has reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the apex court to defend the present Collegium system.
What are the two systems for the appointment of judges, and what triggered the fresh debate? The Indian Express explains.
What triggered the Collegium vs NJAC debate?
Union Minister for Law and Justice Kiren Rijiju reignited the debate in the beginning of November when he commented that the Collegium system of appointments was “opaque” and needed to be reconsidered.
His sentiment was echoed shortly after by Vice President and Rajya Sabha Chairman Jagdeep Dhankar in Parliament on December 7, when he remarked that it was “never too late to reflect” on the NJAC. He said the Supreme Court’s 2015 judgment striking down the NJAC Act was a “severe compromise: of parliamentary sovereignty and disregard of the “mandate of the people”.
Later, reiterating his call to review the Collegium system, Rijiju linked the huge pendency of cases in courts to vacant posts of judges. He blamed the Collegium system, telling Rajya Sabha on December 15 that the only way to resolve the issue was with a “new system” of appointments. He pointed out that the NJAC Bill had been unanimously passed in Parliament but struck down by the Supreme Court. He said the current system of appointment of judges – the Collegium system – did not reflect the feelings of the public and the House.
How did the Supreme Court respond?
Soon after Dhankar’s remarks, without taking any names, the top court asserted that it is the “final arbiter” of the law under the Constitutional scheme and as the law stands, the government will “have to appoint” all names reiterated by its Collegium. A three-judge bench, presided by Justice S K Kaul, also asked Attorney General R Venkataramani to advise Union ministers who are criticising the Collegium system to control themselves.
“You must advise them to exercise some control,” said Justice Vikram Nath.
Later, two days after Rijiju’s statement in Parliament pointing to the high pendency of cases, Chief Justice of India D Y Chandrachud said: “It is in the seemingly small and routine matters involving grievances of citizens that issues of the moment, both in jurisprudential and constitutional terms, emerge.”
Under the system, the Chief Justice of India along with four senior-most Supreme Court judges recommend appointments and transfers of judges.
A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior most judges of that court.
The Collegium system is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
In this system, the government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. The government can also raise objections and seek clarifications regarding the Collegium’s choices, but, if the Collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them to the post.
So what’s the problem with the Collegium system?
Critics of this system say it lacks transparency, since it does not involve an official mechanism or secretariat. It is a closed-door affair in every sense — no one knows when the Collegium meets or how it takes its decisions.
Can the Collegium system be replaced?
Replacing the Collegium system calls for a Constitutional Amendment Bill; it requires a majority of not less than two-thirds of MPs (Members of Parliament) present and voting in Lok Sabha as well as Rajya Sabha. It also needs the ratification of legislatures of not less than one-half of the states.
And what exactly is the NJAC?
The Constitution (99th Amendment) Act, which established the NJAC and the NJAC Act, was passed by Parliament in 2014 to set up a commission for appointing judges, replacing the Collegium system. This would essentially increase the government’s role in the appointment of judges.
The NJAC was to comprise the Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.
The laws were repealed in October 2015 after the Supreme Court struck them down.
Why is the Opposition critical?
Sections of the Opposition believe the Centre’s renewed criticism of the Collegium system could potentially indicate its plans to bring back a Bill to re-introduce the NJAC. Leaders in the Congress told The Indian Express they were unlikely to support the Bill if it is brought back. The RJD, meanwhile, said any NJAC that doesn’t have caste or community representation won’t have its support. The DMK questioned the government’s motives.
The Opposition’s criticism is interesting since, back in 2014, nearly all parties in both Houses of Parliament had unanimously ratified the laws to bring in the NJAC to replace the Collegium system. The AIADMK, then in power in Tamil Nadu, had abstained.
“This whole issue is being orchestrated at various levels… expect the NJAC to be back or at least keep the threat of it alive so as to get the judiciary to fall in line,” Congress leader Jairam Ramesh said.
“We should do everything possible to preserve the independence of the judiciary from the executive. Subordinating the judiciary to executive control would be to compromise its independence at the very moment of appointment,” said Lok Sabha MP Shashi Tharoor .
Trinamool Congress’s Sukhendu Sekhar Ray said the party had supported the NJAC Bill in both Houses of Parliament in 2014. “But now, the way the government is bent on encroaching upon Constitutional authorities, particularly the judiciary, our party may consider the present unpleasant scenario in its proper perspective.”
“All institutions in a democratic country should have a representative character, and should reflect the diversity of caste and community. The Collegium system has not been able to address the issue of the widest possible representation, an Indian reality,” RJD leader Manoj Jha said.
A senior DMK leader said the government is raising the heat after seven long years because it is sensing there could be a pushback from the Supreme Court. “There is talk about the apex court disregarding the mandate of the people and all. Why didn’t the government not file a review petition then?” he said.
The debate was reopened after Union Minister for Law and Justice Kiren Rijiju said the Collegium system of appointments needed to be reconsidered. (Express photo, PTI) 
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