National Judicial Appointments Commission

National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judges and legal specialists in India. The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.
On 16 October 2015, the Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner. Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.
Constitution of NJAC.
A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.
Composition.
As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:
These (two) eminent persons would have been nominated by a committee consisting of the
Functions of the Commission.
As per the amended constitution, the functions of the Commission would have included the following:
Procedures to be followed by the Commission.
The National Judicial Appointments Commission Bill, 2014, had laid down the following procedures for the selection of the Judges of the higher judiciary.
Procedure for selection of Supreme Court judges.
Chief Justice of India.
The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he/she is considered fit to hold the office. However, this must be according to the knowledge one possess rather than the age.
Supreme Court judges.
The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.
The Commission shall not recommend a person for appointment if any two of its members do not agree to such recommendation.
Procedure for selection of High Courts judges.
Chief Justices of High Courts.
The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.
Appointment of other High Court judges.
The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.
Challenge to the constitutionality.
The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer associations and groups before the Supreme Court of India through public interest litigation writ petitions. Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging the validity of NJAC on the ground that the challenge was premature as the constitutional amendment and the NJAC Act had not been notified then. After the fresh challenge in 2015 after the acts were notified, a three judge bench of the Supreme Court referred the matter to a Constitution Bench.
SC declares NJAC unconstitutional.
In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014 meant to replace the two-decade old collegium system of appointing judges in the higher judiciary. The judgement was hailed by lawyers Prashant Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jayaprakash Narayana opposed it.
Support for NJAC.
The only one of the five-judge bench of the Supreme Court led by Khehar, which ruled against NJAC, who opposed the decision was Jasti Chelameswar. argued that the proposed composition of the NJAC would not be a constitutional issue, and that it could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”
Later developments.
On 3 November 2015 the Supreme Court upheld that it is open to bringing greater transparency in the collegium system within the following existing four parameters, with opinions from both the parties(petitioners who challenged the NJAC and the government).
On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court that the central government will not prepare a draft memorandum for judicial appointments contrary to committed earlier and suggested the same to be done through a judgement.