njac v. collegium sys

NJAC v. Collegium system

NATIONAL LAW UNIVERSITY ODISHA

LEGAL HISTORY PROJECT

ON

“ NATIONAL JUDICIAL APPOINTMENT COMMISSION

VS.

COLLEGIUM SYSTEM”

SUBMITTED TO : - MR. BISHWA K. DASH

Research cum Associate professor of Law

SUBMITTED BY : - NIKHIL AJMERA (2015/BA/029)

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TABLE OF CONTENTS

1. Table of Contents…………………………………………………………………….2

2. Acknowledgement……………………………………………………………………3

3. Abstract……………………………………………………………………………….4

4. Introduction…………………………………………………………………………..5

5. Research Methodology……………………………………………………………….6

Scope……………………………………………………………………….....6

Limitation……………………………………………………………………..7

Objective……………………………………………………………………...7

Research Questions…………………………………………………………...7

6. Discussion……………………………………………………………………………..8

Evolution of different system of Appointment……………………………….8

Difference in NJAC and Collegium system………………………………….10

Discussion on NJAC and Collegium system…………………………………10

7. Conclusion……………………………………………………………………………14

8. Bibliography………………………………………………………………………….15

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Teacher who gave

me the golden opportunity to do this wonderful project on the “DIFFERENCE IN NJAC AND

COLLEGIUM SYSTEM” and this also helped me in understanding the concept of Appointment

of judge, its advantages and disadvantages. It requires a lot of Research to understand the

topic clearly.

THANK YOU

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ABSTRACT

Judiciary is an important part of the country; it has capability to move forward

the country as well as to shift backward. Judiciary is one of the main organ of the nation.

In this project, I will be dealing with the appointment of judges because judiciary

cannot be without judges. Judges plays an important role in the developing good atmosphere

among the people of the countryman’s. So, in order to have competent judges, it is necessary

that all the judges that are being appointed have good knowledge and integrity.

So, there is need of system which appoints the judges in particular manner. There

has been many systems that has established for doing the same. But system keeps on

changing in regards to time. In India, mainly Collegium System is used in order to appoint

the judges in the higher courts. But as thee time passes, due to drawbacks in Collegium

system, there is need of new system. Hence new system of appointment has been established

popularly known as National judicial appointment Commission (NJAC).

Hence, in this project I will be dealing with the Comparison between both the

systems and also about the advantages and disadvantages over one another.

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INTRODUCTION

The judiciary is the system of courts that interprets and applies the law in the

name of the state. The term "judiciary"1 is also used to refer to the personnel, such as judges,

magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as

a "bench"), as well as the staffs who keeps the system running smoothly. The judiciary also

provides a mechanism for the resolution of disputes. The Indian Judiciary administers a

common law system of legal jurisdiction, in which customs, precedents and legislation, all

codify the law of the land. The Constitution of India is the supreme legal document of its

jurisdiction which extends throughout the territory of the country.2

In governance of a democracy, judiciary plays an important role and the

Judiciary consists of judges, magistrate and other adjudicator. In India, there is a hierarchy

i.e. District Court High Court Supreme Court. And Judges in high court and in

Supreme Court are selected previously by the way of Collegium but now they are appointed

by the system of National Judicial appointment commission (NJAC).

Collegium system is a procedure through which decisions regarding the

appointments and transfer of judges in supreme court and high court is done by a collegium

which consists of Chief justice of India, four senior most judges of supreme court and three

members of concerned high court i.e. respective state High Court (in the matter related to

high court) including CJ of that High Court. This Collegium also known as Three Judges

Cases. But as time changes collegium system starts to fails due to its some of its

disadvantages and by the review of the critics. Due to which there arises new system of

appointment commonly known as National Judicial appointment Commission (NJAC).

NJAC is a commission that will be constituting of –

Chief Justice of India

2 senior most judges of supreme court

1Available at http://www.thefreedictionary.com/judiciary, Last accessed 20th September 2015.2 "History of Judiciary", All-India Judges Association, Last accessed 18th September 2015.

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Union minister of law and justice, Govt. of India

2 eminent persons (nominated by CJI, Prime Minister, Leader of opposition in Lok Sabha)

So, in this research project, I will deal with the system of appointment of judges

i.e. NJAC and collegium system, their advantages, disadvantages and problem faced by the

country in applying these system in order to get judiciary independent and free & fair from

corruption and other malpractices and also NJAC can be helpful in making the judiciary

independent.

RESEARCH METHODOLOGY

The present study is essentially doctrinal study; research undertaken is

descriptive in nature with an analytical approach to the topic. Secondary data has been

used and examine in the holistic manner for the purpose of the dissertation. The mode of

citation followed by the researchers is OSCOLA.

SCOPE

Judiciary is an important part for any country whether it is democratic or not,

independent or not. An independent, unbiased and able judiciary is the 1st requirement of

justice and for a judiciary to run, it requires judges. So, judges are the main constituents of

the justice, so in order to free and fair justice you requires good and knowledgably judges.

Also, according to the 14th Report on the reform of judicial administration which says that

“Selection of judges constituting court of such pivotal importance to progress of the nation

must be responsibility to be exercised with great care”3

Addressing the Advocate generals’ conference at Shimla in May 1999 Justice S.P.

Bharucha said that “Quality of our judges has regrettably fallen”4. There has been concern

over the quality of judicial appointment. Hence, it is important for a judiciary to have good

and talented judges who identify truth and can maintain the standard and quality of the Indian

3 “Indian judicial system”, S.P. verma, 2004, p.1164 Ibid at 118.

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judiciary. So, in order make judiciary good, it is necessary to have good judges. So, there is

indeed a need of excellent system of appointment of judges.

LIMITATION

Research has no end bar and judiciary is that integral part of the country to which

you can find as much as information you want. But I will be dealing only with system of

appointment judge’s i.e. NJAC5 and Collegium system. I will be focusing purely on the

systems of appointment and which system is better for independence of the judiciary and will

be free from the corruption and all the other malpractices.

OBJECTIVE

To determine difference between Collegium system and NJAC.

To find out which system of appointment of judges is better i.e. NJAC or Collegium

system.

RESEARCH QUESTIONS

1. What are the differences in two systems of appointment of judges i.e. NJAC and

Collegium?

2. Which system of appointment of judges is better and fair?

3. Why there is a need of change in system of appointment of judges at higher level?

5 NJAC stands for “National Judicial appointment commission”.

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EVOLUTION OF DIFFERENT SYSTEM OF APPOINTMENTS

In India, There has many system through which judges has been appointed like by the way of

crown etc. but mainly there are 2 systems which has popularised and they are :

1. Collegium system

2. National Judicial Appointment Commission

THE EVOLUTION OF COLLEGIUM SYSTEM:

The collegium system has its roots in a series of 3 judgments that is commonly

known as the “Three Judges Cases”.

1. The S P Gupta case which is commonly referred as the “First Judges Case”. It was

declared in case that “the ‘primacy’ of the Chief justice of India’s recommendation to the

President can be refused for “pertinent reasons”. This brought a paradigm shift in

favour of the executive having primacy over the judiciary in judicial appointments for the

next twelve years.”

2. In 1993, in case of the Advocates-on Record Association v. Union of India case—

known as the “Second Judges Case” , that case was held by 9-judges bench. The

majority verdict written by Justice J S Verma said that “justiciability” and “primacy”

requires the CJI to be given the “primal” role in such appointments. It overturned the S P

Gupta judgment, saying “the role of the CJI is primal in nature because this being a

topic within the judicial family, the executive cannot have an equal say in the matter”.

Here the word ‘consultation’ had been shrink in a mini form. It asks that Should the

executive have an equal role and be in divergence of many a proposal, germs of

indiscipline would grow in the judiciary.” Justice Verma’s majority judgment saw

dissent within the bench itself on the individual role of the CJI. In a total of five

judgments delivered in the Second Judges case, Justice Verma spoke for only himself

and four other judges. And 2 other judges went on to write individual judgments

supporting the majority view. But Justice Ahmadi had disagrees and Justice Punchhi

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took the side that the chief justice need not restrict himself to just two judges and

can consult any number of judges if he wants to, or no one.

Hence, for the next five years, there was confusion regarding the roles of the

Chief justice and the two judges in the appointments and transfers of judiciary. In many

cases, CJIs took unilateral decisions. Besides, the President became only an approver.

3. In 1998, President recommended a presidential force to the Apex Court as to what the

term “consultation” actually means in Articles 124, 217 and 222 of the Constitution. The

question was if the term “consultation” requires consultation with a number of judges in

forming the CJI’s opinion, or whether the individual opinion of the CJI constituted the

meaning of the articles referred. In reply, the Supreme Court issued down nine guidelines

for the functioning of the quorum for appointments/transfers; this came to be the present

form of the collegiums that has now been replaced by NJAC.

This case is been referred as “Third Judges Case”. Hence, it laid to

development of the Collegium system.6

EVOLUTION OF NATIONAL JUDICIAL APPOINTMENT COMMISSION

To overcome the shortcomings of Collegium system, the government introduced

National Judicial Appointments Commission. Collegium System has been removed because

it has been said that it does not creates transparency and Accountability. This was the main

reason or constituent which led to the development of the NJAC.

In the past also, there has been efforts to brought commission like The Constitution

(67th) Amendment Bill, 1990 but it was failed due to some reasons.

There has been demand for the National Judicial commission by many of the

Judges of Supreme court like -

In first judge’s case, Justice P.N. Bhagwati himself said that, “There must be

commission for the appointment of the judges in high court and supreme court. If the

authority should be more broad based and should be in consulation with boarder interests.

And it should be composed of the people who have interest and knowledge about justice”7

6 Judicial Supremacy vs. Parliament: Why NJAC is better than the Collegium System, Posted on January 6, 2015 by LexQuest, By Sanya Darakhshan Kishwar, Central University of Bihar, Gaya.7 From book pg . 146

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Also, former CJ Justice Chandrachud at Patna proposed the commission of 9

members consisting of 3 judges, 2 representatives of bar, two of government and two of

opposition. He said that, “a decision made by 9-members would be more correct, credible

and acceptable rather than single authority”8 and many other opinions led to the composition

of the Commission.

FUNCTIONS OF NJAC-

1. Referring the person for appointment as CJI, Judge of SC and also CJ of all the High

Courts.

2. Recommendation for transfer of CJ and other judges of the HC from one Court to

another.

3. It also ensures that person they are selecting is of high ability and integrity.9

DIFFERENCE IN NJAC AND COLLEGIUM SYSTEM

MEMBER NJAC COLLEGIUM SYSTEM

Chief justice of India Yes Yes

Senior most Judges Two Four

Government Person Union Minister of Law and

Justice

No Government official

Nominated Person Two No

DISCUSSION ON NJAC AND COLLEGIUM SYSTEM

There have been various debates and discussion regarding the appointment system of

the judges in the recent times after the parliament passed National judicial appointment

Commission bill. There has been various arguments regarding NJAC’s validity and how far it

is correct, whether there is a need of NJAC or not. These questions can be answered from the

following objections and Arguments -

8 Ibid 1479 Available at http://thepeopleschronicle.in/?p=2081, Last accessed 10th September 2015.

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WHY COLLEGIUM SYSTEM HAS BEEN DISMISSED?

The possible issues due to which Collegium system has been dismissed -

* The authoritative burden of selecting and transferring judges without a different secretariat

or insight gathering instrument committed to accumulation of and checking individual and

expert foundations of imminent representatives;

* There was transparency in the system i.e. it is closed door affair;

* Since Collegium system allows to choose the senior most judges from the high Court for

the Judge in SC, hence it downs several talented and intelligent junior judges and advocates.

What moves were taken to correct these?

The 214 th Report of Law Commission recommended the ‘Proposal for

Reconsideration of Judges cases I, II and III i.e. to replace the Collegium system’. Hence, it

provided 2 solutions to resolve the issue of Collegium system:-

* To review the three judgments i.e. “3 judges cases” before the Apex Court.

* A law that can restore the primacy of the CJI and power can be given to executive for the

appointment of Judges.10

OBJECTION RAISED AGAINST NJAC AND THEIR COUNTER AGRUMENTS

National Judicial Appointments Commission is a body responsible for the

appointment and transfer of judges to the higher Courts in India. The Commission is

developed by amending the Constitution of India through the 99th Amendment Act. The

NJAC replaces the collegium system for the appointment of judges.11

10Available at http://salamuddinansari.blogspot.in/2013/01/what-is-collegium-system.html , by Salamuddin Ansari, Last accessed 21st September 2015.11The Constitutions (Ninety-ninth) Amendment) Bill, 2014.

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There has been various opposes regarding the applicability of NJAC. It has

been challenged in Supreme Court regarding its constitutional validity. There have been

various debates on this new Commission. The CJI himself has decided move out of this

commission on the basis of its Constitutional validity. Also there have been many objections

regarding applicability of this commission. There have been mainly 3 objections that has

been raised and they are:-

1. THE JUDICIARY WAS NOT CONSULTED -

But the simple counter to this charge is that when the purpose of the new

law is to end something that was never intended in the constitution, and the current

Chief justice of India has openly defended the collegium system, but there is no

purpose to defend it openly because there exists a power of parliament to legislate and

amend the constitution are paramount and after that The Supreme Court will get its

chance to confirm the law’s constitutional validity if it finds any infirmity in it, then

they can restrict its validity.12

2. THE LAW HAS BEEN CHANGED WITH UNDUE HASTE -

This is certainly true because the government could have gone through an

elaborate process of consultation. But the fact is law changes have been suggested for

years now, so there is no point of Consultation now. And also the author of the 1993

judgment which created the collegium system i.e. the former Chief justice J.S. Verma,

admitted that “the collegiums system had failed”.

And it is the government responsibility to judge the political atmosphere for

what laws will pass and when and also is there any immediate requirement. The fact

that no major political party had any major issues with the NJAC bills which can

shows that the laws was not proper and hence, it have widespread acceptance among

all the Members of parliament. So, this is once again a strong argument against

Collegium system.13

3. THE NJAC DIMINISHES THE JUDICIARY’S ROLE IN THE APPOINTMENT OF JUDGES -

12“NJAC vs. collegium system: Which one is better for appointment of judges?”, Rruchi Shrimalli, 2014.

13 “Judicial Supremacy vs. Parliament: Why NJAC is better than the Collegium System”, Sanya Darakhshan

Kishwar, published by LexQuest.

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This cannot be considered true because the new law says that judges will be

chosen by a 6-member NJAC. Of the six, “there would be the CJI and two senior-

most Supreme Court judges, two would be undefined “eminent persons”, and one

would be the Law Minister.”14 If two of the members oppose to a judge’s nomination

then, the matter would end there. The two eminent persons are themselves to be

nominated by a 3-member team – the Chief justice of India, the Prime Minister and

the Leader of the Opposition.

If half of them are judges in the NJAC members then, how can there be

reduce in the role of judiciary in the appointment of the judges. Also, the system is

such made that the 2-member veto power can stop the judges from getting their

choices in, but the reverse could also be true: 2 judges, or 2 politicians, or 2 eminent

persons, or a combination of any 2 members of NJAC could hold a veto power. The

fact is that nobody can push a judge down anybody's throat. The judiciary’s role is not

diminished; it is being counter-balanced by giving the executive and politicians some

power by the method of veto. Also this follows the article 124 of the Constitution.

Hence, there is no way through anyone can say that new law diminishes the

judiciary role.15

14 99th Amendment Act, 2014.15“ Judicial supremacy Vs Parliament: Why NJAC is better than the collegium system”, R Jagannathan, The Hindu, published on 16th august 2014.

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CONCLUSION

It is one of the current matter and affair dealing in the country regarding the

appointment of judges because judges held a very important place in judiciary and in

democracy.

The System needs to be change from time to time by analysing the situation and

circumstances. Although Collegium system was good and did works during that time but as

time changes and generation moves forward it is important to have changes. The time has

come to have changes in system of appointment of the judges.

NJAC gives transparency regarding the selection of the judges as it involves

Member of Parliament which can think from the point of view of general people and can

understand view of general public. Also NJAC has quorum and judges cannot be appointed

without the approval of the quorum.

Hence, from the facts and issues that have been raised against the Collegium

system, it is good have a commission which can look into judiciary and can have a clear

mandate about the appointed judges. So, NJAC can be helpful to have reform in judiciary.

And surely, NJAC success can only be measured and determined as the time passes,

how it is different from the earlier system, how it gives transparency to the system and also

how it brought clear selection of judges or there can be done changes in the Collegium

system itself rather than again and again changing the Laws Finally, the time will test NJAC,

whether it helpful or not, has it able to pass and overcome the defects and drawbacks of the

Collegium system.

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BIBLIOGRAPHY

Book–

“Indian Judicial System- Need and Direction of Reforms” By S.P. Verma

I have selected this book because it deals about the past systems that have

been followed and it also keeps the track of Collegium system and National judicial

Commission i.e. their need and demands in the judiciary. It also contains view of

critics about the Collegium system in the Chapter 8 of the book.

Articles –

“What is Collegium system”, Salamuddin Ansari,

Also Available at http://salamuddinansari.blogspot.in/2013/01/what-is-collegium-

system.html, Last accessed 14th September 2015–

This article has been selected because it gives brief information

about the Collegium system which helped me to understand the real meaning of

Collegium system and how it is developed.

“NJAC vs collegium system: Which one is better for appointment of judges?”,

Rruchi Shrimalli -

This article has been used in this project because it points the view

on system of appointment i.e. which system is better. It also deals with one of my

research questions.

“Judicial supremacy Vs Parliament: Why NJAC is better than the collegium system”, R

Jagannathan, the Hindu, Published on 16th august 2014 -

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This Article dealt with the advantages of NJAC over the Collegium

system, which helps me get understanding about the difference in both the systems.

“Judicial Supremacy vs. Parliament: Why NJAC is better than the Collegium

System”, Sanya Darakhshan Kishwar, published in 2015 by LexQuest –

This Article is almost same with earlier article i.e. by R. Jagannathan.

In this article also, author tries give importance to NJAC by formulating its

advantages and need in the present scenario. I had taken this in order to get the clear

understanding about the Topic.

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njac v. collegium sys

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