NJAC or Collegium System - Which is Better?
NJAC or Collegium System - Which is Better?
Parliament has been active in promoting the creation of a National Judicial appointments commission to replace the current collegium system. Constitution (121st Amendment) Bill, 2014 and the National Judicial Appointments Commission (NJAC) Bill, 2014 seek to establish an NJAC which will mandate the appointment of CJI, judges to SC and HC as well as transfer of judges to HC. This system of appointment was struck down by the SC which promoted the collegium system of selecting judges. So, does the collegium system ensure appointments to higher judiciary are objective, transparent and participatory? Or does NJAC score over its earlier option in terms of fairness? Let us weigh both sides of the scale to see if justice has been done in scrapping the NJAC System.
NJAC is better
1. Collegium lost its legitimacy - NJAC was seen as a means of ensuring credible and impartial appointment with the absolute secrecy characterising its functioning as opposed to the biased collegium system.
2. NJAC a mix of executive and judiciary - NJAC is a blend of executive and judiciary rather than a system whereby only judges appointed judges in the collegium system
3. Participation of civil society stakeholders - Eminent persons from civil society with expertise in the matter can also be included for the selection of judges as per NJAC
4. Veto powers - Veto by two members of the commission may stop a judge’s appointment in case the latter has court cases pending against him or her
5. Seniority not the only criteria - NJAC will consult the Governor and the CM before making the recommendations for appointment, giving it a wider scope of consultation and criteria on the basis of which judges are selected, rather than seniority.
6. Circumvents democracy - The collegium system circumvents democracy due to bias shown by judges
7. Opaque selection process - The collegium has a non-transparent selection process
8. Anti-Constitution: Only constitution role is given to CJI with president appointing the judges as per the collegium system
9. Young talent ignored - Seniority being the criteria for appointment, younger and more talented judges are often passed up for appointment in the collegium system.
Collegium is better
1. More attention to detail - Reform bills pay scant attention to detail and are sketchy in their provisions
2. Problem in implementation: NJAC’s issues relating to composition are a trouble both in principle and practice.
3. Limited expertise: Appointments to the office of CJI can be made only when 2 senior most judges of the NJAC rescue themselves as they will be appointed for CJI possibly. This means by default, the CJI is the only judicial member for selection
4. NJAC will also assess if candidate is fit to hold office - The criterion based on which the fitness will be declared is questionable and vague
5. Appointments remain a secret - While talking about transparency, the shortlisting of candidates and their selection as well as veto for the same is to be done in secrecy as per the NJAC bill. This defeats the very purpose of the bill.
6. Reservations over the role of governor - There are also concerns over whether the governor will act as per his discretion or the CM for appointing judges as part of NJAC
7. Non judicial members join the fray: Veto by non-judicial members can override the majoritarian decision whereby appointment of CJI and 2 senior judges can be overwritten.
8. Non participation of wider civil society - Even the “eminent persons” are not chosen unanimously but amongst the Prime Minister, CJI and leader of the Opposition in Lok Sabha.
9. Prevents judicial politicisation: The politicisation of the judiciary through NJAC is circumvented by the collegium system
10. Judiciary retains autonomy- the senior judges know better about the talent in the field of judiciary rather than the executive and the SC retains autonomy through the collegium system
Conclusion
Collegium system has been despised on account of delays in appointment, transfer and lack of transparency as well as detailed information about candidates. But it has protected the judiciary from undue political interference. On the other hand, NJAC does not make any provisions for promoting a transparent system of appointment either. No system is perfect. Each has its own benefits and drawbacks. The focus should be on devising a system of appointment which promotes transparency along with independence of judiciary. Till then, justice delayed is justice denied.
Discussion
- RE: NJAC or Collegium System - Which is Better? -Deepa Kaushik (11/12/15)
- Every concept is put forth showing someor the other beneficial factors. NJAC is also suggested with some pros which is expected to be better over the collegium system.Still, the primary question remains open; whether there is any requirement to change the prevailing system?
We have many problems with the law and order situation in the country. We have problems with the corrupt practices prevailing in every aspect of work culture. We have problems with the leniency in the judicial framework which makes us spend crores and crores just to keep the culprits alive with immense security. We have loopholes in our law which makes the accused escape for years and die his natural death but the victim keeps running from pillar-to-post for justice. With a plenty requiring amendments at first place, do we need to focus on the selection of judges?
It is not incorrect to think on those lines, but why not concentrate on the burning issues first rather than wasting time on a system which is doing good so far? Our judges are being appointed by the senior judges who have donewell in their professional life throughout. They could evaluate the need better and can have a better insight of the candidate to be appointed for the post.
The present collegium system gives independent judiciary which is very much necessary for India. It is only the judicial system which is out of the hook-up of politics and getting victimised to politicians. The major disadvantage with the NJAC would be the involvement of politicians in the judicial system which would create an unwanted influence in the legal framework.
Independence of judiciary is very important for any democratic country and its citizens. And losing the same would get common man further entraped to the political games which would be no good. NJAC can be better avoided to prevent any deterioration in the judicial framework. Collegium system is definitely better over the NJAC for the prevailing circumstances of our country.
