Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (UPSC IAS Mains 2017 General Studies Paper – 2)
Recently the Supreme Court struck down the 99th constitutional amendment and held the view that NJAC (National Judicial Appointment Commission) is not a credible alternative to the Supreme Court’s collegium system of appointment of judges for the higher judiciary.
The court held that the primacy of judiciary in the appointment of judges was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure by giving executive and civil society a say in these appointments.
However this judgement faced criticism based on following arguments-
- The verdict upheld an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
- According to critics, the judgement failed to adequately answer the fundamental question at the root of the controversy, i.e. how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure. Whereas the Constitution accords to the President the power to appoint judges with compulsorily consulting with certain persons.
- Critics say that the Supreme Court, in the second judges’ case, 1993, wrongly interpreted the word ‘consultation’ used in Articles 124 and 217, to mean concurrence. The court then held that the executive was bound by the advice of the CJI in making appointments to the higher judiciary.
Even the Supreme Court has admitted in the same NJAC judgement that all is not well within the opaque collegium system of “ judges appointing judges” and called for further discussion on reform process of collegium system.
The Constitution envisages and puts a system in place to ensure the balance of power involving the executive, the legislature and the judiciary but not at the cost of opaqueness in appointment process. With evident loopholes in the collegium system, time has come for a review of the verdict by a larger bench.
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