Updated: Aug 18, 2021
Memorandum of Procedure (MoP) to appoint judges to the Supreme Court and High Courts is finalised.
Justice Verma moulded the Collegium system of judicial appointments in the Second Judges Case of 1993.
The process of judicial appointments as a “transparent and broad-based” exercise involving not just a handful of senior judges but their brethren, the Chief Ministers and top law officers of the Centre and the States.
It wants all Supreme Court and High Court judges to be able to recommend names to their respective collegiums.
It has recommended Chief Ministers to have the right to suggest names to the respective High Court collegiums.
Similarly, Attorney General should be allowed recommend the names of judges to the Supreme Court and Advocate-General of States to their respective State High Courts.
FLASHBACK: The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
What is the NJAC? The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges. What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998) Why is Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court. The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.” How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015. Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination. If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.