Editorial 1 : Court Must Visit NJAC
Context: Justice Varma case
Historical Context and Constitutional Framework
- Article 124 of the Constitution:
- It establishes the Supreme Court and outlines the process for appointing judges.
- Key Provision: The President appoints judges after "consultation" with the Chief Justice of India (CJI).
- Rejected Proposal: The Constituent Assembly dismissed substituting consultation with concurrence to avoid granting the CJI unilateral veto power (as argued by Dr. Ambedkar).
- Early Functioning
- Smooth operation for two decades post-Independence with judges of high calibre.
- First Judges Case (S.P. Gupta Case, 1981): Supreme Court ruled consultation does not equate to concurrence. Thus, preserving executive authority in appointments.
Shift to the Collegium System: Second Judges Case (1990s)
- The Supreme Court reinterpreted consultation as concurrence, transferring appointment power to the judiciary.
- Collegium System Introduced
- A body of the CJI and four senior-most judges proposes judicial appointments.
- Criticism: Not constitutionally mandated, leading to accusations of judicial overreach.
NJAC Amendment and Judicial Response
- Constitution (99th Amendment) Act, 2014
- Created the National Judicial Appointments Commission (NJAC)
- Composition: CJI, two senior SC judges, Union Law Minister, two eminent persons.
- Objective: To balance judicial and executive roles in appointments.
- Political Consensus: Passed unanimously in Parliament (except Ram Jethmalani) and ratified by 16 states.
- Supreme Court Strikes Down NJAC (2015)
- 4:1 Majority Judgment: Declared NJAC unconstitutional under the Basic Structure Doctrine.
- Reasoning: Inclusion of non-judicial members (Law Minister, eminent persons) threatened judicial independence.
- Dissenting View: Justice Chelameswar highlighted collegium's flaws and supported NJAC as a reform.
Criticisms of the Collegium System
- Lack of Transparency and Accountability
- Justice Chelameswar's Dissent: Criticized trade-offs and dubious appointments within the collegium.
- Justice Ruma Pal's Remarks: Labelled the system a best-kept secret, fostering sycophancy and lobbying.
- Judicial Self-Interest: Justice Kurian Joseph concurred with the majority but acknowledged the collegium's trust deficit and opacity.
- Regret from the Bench: Justice Kurian Joseph publicly expressed regret for striking down NJAC in 2020, citing the collegium's poor performance post-2015.
Conclusion and Way Forward
- Missed Opportunity: NJAC represented bipartisan consensus but was invalidated despite systemic flaws in the collegium.
- Call for Reconsideration: A larger Supreme Court bench should revisit the NJAC verdict, similar to how the Second Judges Case overturned S.P. Gupta.
- Need for Reform: Address collegium's opacity, reduce judicial overreach, and restore balanced stakeholder involvement in appointments.