njac v. collegium sys
TRANSCRIPT
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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NJAC v. Collegium system
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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NJAC v. Collegium system
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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NJAC v. Collegium system
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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NJAC v. Collegium system
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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