NJAC/National Judicial Appointments Commission Act: Why It Cannot be Struck Down

NJAC/National Judicial Appointments Commission Act: Why It Cannot be Struck Down

Question: The NJAC Act has its fair share of supporters and critics. Highlight why it may not be easy to strike down this act.

- The NJAC Act is a superior alternative to the collegium system because it raises the consultative process in the selection of judges to a higher level

- Constitution Bench of the SC which is hearing a petition challenging NJAC has said though the collegium system was good, its implementation is far from effective

- Constitution Bench may not be able to turn down the two laws on grounds that judicial primary in appointment of judges has bee done away with and the Basic Structure of the Constitution has been violated

Judgement has laid down the following propositions:

- Judicial independence extends in stage of appointment of judges and having security of tenure, salary, pension and so on is not enough

- Selection of judges is a consultative, participatory and constitutional function performed by high constitutional functionaries whose sole aim is to select persons for higher levels of judiciary

- No one is above or below in this context. But selection of a judge through the process of consensus is not possible because and in such cases, the CJI’s opinion may be valuable

- It is necessary to avoid political interference in judicial appointments and NJAC will see to this

- Court has also adopted a larger perspective on this issued;

- “The joint venture of all the constitutional functionaries will help to transcend the concept of primacy between them,” the court has observed

- Appointment should be made only when proposed by the CJI; Constitution Amendment Act and the NJAC Act can only be struck down if judicial independence is being violated

- The Constitution Amendment Act and the NJAC Act can be struck down only on the ground that these enactments violate the basic structure, namely judicial independence.

- However, the Constitutional Amendment Act does not confer primary on the executive

- No single individual or group has primacy in new scheme of judge selection

- New enactments extend the concept of independence to appointments

- After all, if judges do not approve of a certain name, they can always veto it

- Thus, it may be hard to strike down NJAC

Facts and Stats

- NJAC Bill 2014 was introduced in August 2014 by Minister of Law and Justice, Ravi Shankar Prasad

- The bill was introduced alongside the Constitutional(121st) AA which seeks the establishment of the National Judicial Appointments Commission

- Bill also provides for procedure to be followed by NJAC for recommending persons for posts of the following courts:

- CJI and other Judges of SC

- CJI and other Judges of HC