The Collegium System is a judicial method employed in India, where the Chief Justice of India (CJI) and four other senior-most judges of the Supreme Court make recommendations for appointing judges of the Supreme Court and High Courts. This system has been in place for nearly three decades. The Supreme Court Collegium comprises five members, headed by the incumbent CJI, and includes the four other highest-ranking judges of the court at that time. A high court collegium is led by its Chief Justice and two other senior-most judges of that court.
On the other hand, the 99th Constitution (Amendment) Act along with the National Judicial Appointments Commission (NJAC) Act was passed by the Parliament in August 2014. It aimed to set up an independent commission that would replace the existing Collegium System for appointing judges to the Supreme Court and High Courts. However, it was declared unconstitutional and nullified by the Supreme Court in 2015.
Introduction of National Judicial Commission Bill, 2022
Recently, the National Judicial Commission Bill, 2022 was introduced after receiving majority votes. The bill primarily aims to regulate the procedure to be followed by the National Judicial Commission for recommending persons for appointments as the CJI, other judges of the Supreme Court, and Chief Justices and other judges of High Courts.
The bill also seeks to provide a mechanism for investigating individual complaints regarding misbehaviour or incapacity of judges of the apex court or a high court. It proposes the presentation of an address by parliament to the president concerning proceedings for removal of a judge and matters related to it.
About National Judicial Appointments Commission (NJAC)
Established in 2014, NJAC sought to appoint the CJI and Chief Justices of High Courts based on seniority. Judges of Supreme Court and High Courts were to be recommended based on ability, merit, and other specified criteria. The Act enabled any two members of NJAC to veto a recommendation if they disagreed.
The proposed NJAC comprised the CJI as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as an ex officio member, and two eminent persons from civil society.
Constitutional Provisions for Appointment of Judges
Articles 124(2) and 217 of the Indian Constitution detail the appointment of judges to the Supreme Court and High Courts. The President makes these appointments after consultation with “such judges of the Supreme Court and of the High Courts” as deemed necessary. However, a process for making these appointments is not clearly outlined in the Constitution.
NJAC Challenge in Court
In 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions of NJAC. SCAORA argued that the 99th Amendment, which provided for the creation of NJAC, largely nullified the primacy of the collective opinion of the CJI and the two senior-most judges of the Supreme Court. SCAORA insisted that the amendment severely damaged the basic structure of the Indian Constitution, compromising the independence of judiciary in the appointment of higher judiciary judges.
Way Forward: Balancing Independence and Accountability
The focus should be on the method of appointment of judges, rather than who appoints them. It is vital to strike a balance between judicial independence and accountability. The Executive should have a say in appointments, but the composition of the JAC should not compromise judicial independence.
Equal opportunity and fixed criteria for selection of judges should be ensured to maintain justice within the judiciary. The NJAC Act could be amended to include constitutional safeguards, and restructured to ensure that majority control remains with the judiciary.