Collegium System vs. NJAC Debate

Syllabus:

GS 2: Government Judiciary

Why in the News?

Recently, debates on judicial appointments resurfaced after criticism of the collegium system’s opacity. Calls for reviving the NJAC have gained momentum, urging judicial reforms to enhance transparency, accountability, and executive participation.

Collegium System vs. NJAC Debate

Revisiting Judicial Appointments in India

  • Article 124 of the Indian Constitution establishes and governs the Supreme Court of India.
  • It states that judges of the Supreme Court shall be appointed by the President of India after consulting the Chief Justice of India (CJI).
  • However, over time, this system evolved into the collegium system, shifting the power of appointment from the executive to the judiciary.
  • The attempt to reform this through the National Judicial Appointments Commission (NJAC) was struck down by the Supreme Court in 2015, raising concerns about transparency and judicial independence.
  • The issue remains a critical debate in India’s legal and constitutional landscape.

Article 124 and Judicial Appointments

  • Article 124 provides that the President appoints Supreme Court judges after consulting the Chief Justice of India.
  • During the Constituent Assembly debates, a proposal to replace “consultation” with “concurrence” was rejected by B.R. Ambedkar, who feared giving the Chief Justice a veto over appointments.
  • Initially, this system functioned smoothly, ensuring the appointment of competent and independent judges.

First Judges Case (1981)

  • The issue of judicial appointments and the interpretation of “consultation” under Article 124 led to the P. Gupta case (1981), known as the First Judges Case.
  • Petitioners argued that “consultation” should mean “concurrence,” implying that judicial appointments must have the Chief Justice’s approval.
  • The Supreme Court rejected this argument, reaffirming that the executive had the final say in appointments after consulting the Chief Justice.

Evolution of the Collegium System

  • In the 1990s, the Supreme Court revisited the issue and, in a significant departure from the First Judges Case, ruled that “consultation” meant “concurrence.”
  • This led to the establishment of the collegium system, where the Chief Justice and four senior-most judges of the Supreme Court decide on judicial appointments.
  • The collegium system effectively transferred the power of appointing judges from the executive to the judiciary.
  • This system was never envisaged in the original Constitution and remains a point of contention.

National Judicial Appointments Commission (NJAC)

  • Recognizing the shortcomings of the collegium system, the Indian government passed the 99th Constitutional Amendment Act in 2014, establishing the NJAC.
  • The NJAC was designed as a six-member body comprising:
    • The Chief Justice of India
    • Two senior-most Supreme Court judges
    • The Union Minister of Law and Justice
    • Two eminent persons
  • The amendment received overwhelming political support, passing with near unanimity in Parliament and being ratified by 16 state legislatures.

Supreme Court Strikes Down NJAC (2015)

  • In 2015, the Supreme Court, in a 4:1 majority judgment, struck down the NJAC as unconstitutional.
  • The Court ruled that the inclusion of the Law Minister and two eminent persons diluted the primacy of the judiciary in judicial appointments, thereby compromising judicial independence.
  • The judgment relied on the Basic Structure Doctrine, arguing that judicial independence is a fundamental part of the Constitution and cannot be altered.
  • Justice Jasti Chelameswar, the sole dissenting judge, strongly criticized the collegium system for its lack of transparency and accountability.

Criticism of the Collegium System

  • Several senior judges and legal experts have criticized the collegium system:

Justice Jasti Chelameswar’s Dissent:

  • He highlighted the flaws in the collegium system, stating that it lacked transparency and credibility.
  • He observed that appointments were often influenced by personal biases, lobbying, and trade-offs among judges.

Justice Ruma Pal’s Views

  • Former Supreme Court judge Justice Ruma Pal called the collegium system “one of the best-kept secrets in the country.”
  • She criticized its secrecy, lack of accountability, and the risk of appointing unqualified judges.

Justice Kurian Joseph’s Regret:

  • Though he concurred with the majority in the NJAC case, he later publicly regretted his decision.
  • He admitted that the functioning of the collegium system over the following years reinforced its deficiencies.

Arguments in Favor of NJAC

  • Democratic Legitimacy: The NJAC was passed by an overwhelming majority in Parliament and ratified by state legislatures, reflecting the will of the people.
  • Checks and Balances: The inclusion of non-judicial members ensured a broader perspective in judicial appointments.
  • Transparency: Unlike the collegium system, which functions in secrecy, the NJAC had provisions for structured decision-making.
  • Accountability: It reduced the risk of nepotism and bias in judicial appointments.

Challenges and Concerns

Judicial Independence vs. Executive Interference

  • The Supreme Court struck down the NJAC fearing government interference in judicial appointments.
  • However, critics argue that complete judicial control over appointments creates a closed system lacking external accountability.

Lack of Alternative Reforms

  • Despite striking down the NJAC, no substantial reforms have been introduced to address the flaws in the collegium system.

Missed Opportunity

  • Many legal experts believe that the Supreme Court missed an opportunity to reform judicial appointments by rejecting NJAC.

Need for Reconsideration

  • The striking down of NJAC was a missed opportunity for meaningful judicial reform.
  • Justice Chelameswar and Justice Kurian Joseph’s remarks indicate that even within the judiciary, there is dissatisfaction with the collegium system.
  • Given the growing concerns over judicial appointments, it is time for a larger bench of the Supreme Court to reconsider the NJAC judgment, just as the First Judges Case was revisited in the Second and Third Judges Cases.

Way Forward

  • Revisiting the NJAC: A reformed version of NJAC with necessary safeguards can balance judicial independence and transparency.
  • Enhancing Transparency: The collegium system should introduce more transparency in its decision-making process.
  • Legislative Consultation: A consultative mechanism between the executive and judiciary can ensure fair appointments.
  • Public Disclosure: Selection criteria and reasons for appointments and rejections should be made public.
  • Larger Bench Review: A larger Supreme Court bench should reconsider the 2015 NJAC ruling in light of recent criticisms.

Conclusion

NJAC verdict remains a contentious issue in judicial reforms. Given concerns over transparency and accountability in the collegium system, a larger Supreme Court bench should reconsider the decision to ensure a more balanced and efficient judicial appointment process.

Source:

Indian Express

Mains Practice Question:

Do you think the collegium system ensures transparency and accountability in judicial appointments? Analyze its merits and demerits while suggesting possible reforms.