We have many laws in our country like the Fundamental rights, Fundamental Duties, Directive Principles of State Policy and what not…! Who protects these rights and laws..? Who acts as a judge between the good and the bad..? JUDICIARY! a vital organ and one of the 3 main pillars of the constitution and acts as a key factor for upholding law in our country. Though President of India is appointed to protect the constitution, it is the Judiciary which acts as a pillar to uphold, preserve and protect the rights of its Citizens.
We all know that Supreme Court is the highest Court of law in our country, along with which there are 24 High Courts and 600 district courts. These were set up with a thought to give justice to people and since the British period we have seen judiciary gaining its importance in India when the British Government set up the first Supreme Court at Calcutta in 1774 through the REGULATING ACT of 1773. This Court had 1 Chief Justice and 3 other Judges being appointed to act as an institution to provide justice to people. It started in here and today, The Indian Republic has 1 Chief Justice and 30 other Judges in the Supreme Court and various number of Judges across the nation.
Since its inception, we have known Judges are the people to give decisions and provide justice, but who appoints these Judges.? What is the procedure that has been followed to appoint them.? On what basis and qualification are they appointed.? These questions are frequent and taunt us.
It was this concept of COLLEGIUM SYSTEM that was followed to appoint Judges. Now, what is this Collegium System.? Article 124(2) of our Constitution says “The Judges of Supreme Court or High Court can be appointed by the President after CONSULTATION with such number of judges in Supreme Court or High Court as he may deem necessary and judges are appointed until they attain the age of 65.” The Collegium system was in consonance with the trend of Judicial activism undertaken by the Supreme Court and this system consisted of 4 Senior Judges and the Chief Justice of India. They were to decide upon the appointments of Judges across India and the President used to appoint by consulting them. The Judges took over the power of appointing Judges to themselves.
Until recently in 2012, an issue broke out on the floor of the Parliament to reform and reframe the appointing procedure of Judges in India. So was the 121st Constitutional Amendment Bill introduced in 2014. This is to set up the National Judicial Appointment Commission.
Each one of us are curious to learn the changes that are brought about in appointing our judges who render justice to us. How effective can these changes be implemented? This is the question that mocks us. This is our effort to explain few facts about NJAC.
As we all know Indian judiciary underwent enormous changes after the invasion of British East India Company. The judicial precedents,coding of law etc., were introduced that brought immense alteration in day-to-day activities. Also, ours is the longest written constitution includes 448 articles in 25 parts, 12 schedules, 5 appendices and 98 amendments(out of 120 constitution amendment bills) (updated).
The N.J.A.C bill seeks to amend Article 124(2) and introduces Article 124(A),(B)&(C) for composition, appointment and functioning of NJAC in our constitution. This bill was passed by both the houses of the Parliament and was also passed by 16 state legislatures and on 31st December 2014, it was assented by Sri. Pranabh Mukherjee, The President, Republic of India. Now, this is the 99th Constitutional Amendment Act, that will come into force very much soon.
The NJAC Commission replaces the collegium system. Now this commission will be constituted with Chief Justice of India (Ex-Officio), Two Senior judges of supreme court. Union minister for law and justice, Two eminent persons (One person from SC/ST/OBC/minority/women and will have a true rotation for 3 years). Also, the judges who are appointed or transferred to the higher courts are recommended on the basis of their ability, merit and regulation related to the act.
There are Pros and Cons to both Collegium System and NJAC. Infact, the collegium system has come under complete criticism on account of opaqueness in appointment and transfer of Judges. With the growing amount of corruption and nepotism within the judiciary requires transparency with in the entire system. The recent developments of Justice P. Dinakaran case and Justice V. Ramaswamy case are very good pointers for the necessary reformation that is required in the Judicial system.
Also, it is been criticized because the appointments are not meritorious based, does not provide adequate tenure for Judges of High Court and more over they are secretive and are not known to public.
Though the sixth commission has planned an effective way of appointing judges. As mentioned, it also has certain loop holes. The Supreme Court Advocates on Record Association(SCAORA) has opposed the act saying this new statute violates the basic principle of the constitution. The petition that is filed against NJAC says that “This system will result in delay of rendering justice to common people”. Adding, this commission violates Articles 124(2) and 217(1) of constitution as such is invalid.
But in the eyes of public, finally India is moving towards a constitutional provision in appointment of Judges. This system may not be perfect but it definitely has a constitutional status now. N.J.A.C., was a long awaited amendment and moreover it should be seen as a best possible solution right now, as it is more transparent than the older one. This will ensure checks and balances in the constitution as well as will uphold the Judicial Independence and Judicial Sanctity.
Update: UNFORTUNATELY ITS SHUT DOWN :(
With Warm Regards, Ganesh Datta Sawan Shastry
Original Article Published on 26th January 2015.
