Exactly one year ago, Vice President Jagdeep Dhankhar had also made a big statement in the heated debate going on between the Central Government and the Supreme Court on the issue of judicial appointments. Referring to the National Judicial Appointments Commission (NJAC) and the apex court’s 2015 judgment striking down the 99th Amendment, Vice President Dhankhar had asked how the judiciary can strike down a unanimously passed constitutional provision that overrides the “will of the people”. This was the same time when the then Law Minister Kiren Rijiju had said that only the NJAC could provide a transparent alternative to the decades-old collegium system.
There is a continuous tussle going on between the government and the Supreme Court regarding appointments in the Higher Judiciary. The Supreme Court itself has heard this matter and also given warnings to the government. Now the question arises why this matter suddenly came into limelight again after a year.
The first step of this story starts with the address of President Draupadi Murmu in the programme organised in the Supreme Court on the Constitution Day. President Draupadi Murmu talked about the establishment of All India Judicial Service for the appointment of judges. He said appointments in the judiciary should be ‘merit based’ and transparency in the entire process is necessary.
The second step of this story is a question asked in the House by Gujarat Congress MP Shakti Gohil. In response to Shakti Gohil’s question, current Law Minister Arjun Ram Meghwal said that the government is continuously making appointments on the recommendations from the Supreme Court. It is taking time to complete some formalities, hence some recommendations are also pending. Arjun Ram Meghwal also saw the right opportunity and said that there should be no delay in the appointment of judges and transparency should be maintained, that is why MoP is being formed under the guidelines of the Supreme Court. As soon as the MoP gets ready, it won’t take long. This means that Arjun Ram Meghwal indirectly held the Supreme Court responsible for the delay in the appointment process of judges.
The third step of the story is the statement given by CJI DY Chandrachud in Mumbai. In the inauguration ceremony of the Mumbai bench of CAT i.e. Central Administrative Tribunal, the CJI said that there is a continuous deadlock with the government in the appointments of judges, but in the address, CJI Chandrachud did not make any mention about the MoP. Earlier, in another programme, CJI Chandrachud had praised the collegium and said that before appointing the judges, the Supreme Court examines their conduct, behaviour and efficiency, apart from their qualifications and disqualifications. A complete system is working for this. CJI Chandrachud got the message in political circles that the higher judiciary is in no hurry regarding the MoP.
Let us now know about NJAC. How and how much is it different from the collegium system? What is the background of the present story?
In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, which provided for the creation of an independent commission for appointment of judges to the Supreme Court and High Courts. Both the Bills were approved by the required number of State Legislatures and received Presidential assent on 31 December 2014.
Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and High Courts of the country. Article 124(2) states that “Every Judge of the Supreme Court shall be appointed by the President after consultation with the Judges of the Supreme Court and the High Courts”. While the collegium system itself is not a part of the Constitution, its legal basis has been considered to be three decisions of the Supreme Court regarding the higher judiciary.
The NJAC Act prescribed the procedure to be followed by the Commission for the appointment of judges. The Chief Justice of India and Chief Justices of the High Courts were to be recommended by the NJAC on the basis of seniority, while judges in the Supreme Court and High Courts were to be recommended on the basis of capacity, qualifications and “other criteria specified in the Rules”. The Act gave any two members of the NJAC the right to veto a recommendation if they did not agree with it.
