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Insights into Editorial: An assertion of primacy

Insights into Editorial: An assertion of primacy

17 October 2015

It is widely accepted fact that the present system of judicial appointments that was put in place in 1993 is deeply unsatisfactory and there is a need for significant legislative reform. However, a five-judge supreme court Bench recently struck down the Constitution (99th Amendment) Act, 2014, by which the government intended to establish a National Judicial Appointments Commission to select members of the higher judiciary.

Why  was it struck down?

  • The composition of the NJAC, especially the inclusion in it of the Union Law Minister and two eminent persons was not widely appreciated. According to the court, the inclusion of the Law Minister in the body impinged on the doctrine of separation of powers.
  • The NJAC act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members.
  • The court also felt that this new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution.
  • The clauses provided in the amendment are also inadequate to preserve the primacy of the judiciary.
  • And even the Attorney General, representing the government of India, could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments.

How is this decision being viewed?

  • To some it may appear that striking down a Constitution amendment passed unanimously in both Houses of Parliament and ratified by 20 State Assemblies amounts to negating the people’s will.

However, it should be noted that the judiciary remains the sole authority to decide whether a law violates the basic structure of the Constitution.

What is the NJAC?

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.

Composition of the NJAC:

National Judicial Appointments Commission (NJAC) is a six-member panel headed by the Chief Justice of India, and includes two senior-most Supreme Court judges, the Union Minister of Law and Justice and two ‘eminent persons’ nominated by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition.

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 criticized?

  • The Central government has criticized 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.”
  • The collegium system also lacked transparency and was also susceptible to abuse.