The recent past has seen a resurrection of the NJAC vs Collegium debate, basically, both of these are two ways wherein a committee is formed undertaking the appointment and transfer of judges in the higher courts of law. They both differ w.r.t composition wherein the former involves outside parties the latter is limited to members of the judicial structure.
This article will drive you through a dosage of the opium of opinion followed by factual relevance and the historical background of the case.
Opium of Opinion
What is best for our country is still a far cry, but saving the judiciary from political hands is a prerequisite to guarding its sanctity. The last thing we would want is appointed judges being changed for a case that has been shifted to the higher courts. Justice awaited for a long time being denied because money and social capital could now influence every part of the democratic machinery.
A crime is more probable to look at a punishment if done by the “have-nots" looks at impunity when done by the “haves”, a judge has the power to curtail this form of disservice to the ones that have been wronged. Hence, the appointment of judges becomes a crucial part of the system.
There are two ways in which appointments can take place:
National Judicial Appointments Commission (NJAC)
The Collegium System of Appointment of Judges
The Collegium
It is the prevailing system wherein the formalities need to be performed by the President while the actual decision-making remains with a committee known as the Collegium.
Composition: Led by the Chief Justice and four of the court’s most senior judges.
Role of the govt:
It can object to and request clarity on the collegium’s choices, but if the collegium repeats the same names, the government is obligated to install them.
Request the Intelligence Bureau (IB) conduct an investigation if a lawyer wishes to be nominated.
NJAC
It was established under the 99th amendment in 2014 and contains parties outside the judiciary.
Composition: The Chief Justice of India, The two senior-most judges of the Supreme Court, The Union Law Minister, and two ‘eminent persons’ nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
Critical Analysis
The major drawback involved in NJAC is political and legislative interference in appointing judges. India has seen on various benches in the past the transfer of judges, the impression of opinion, and sudden promotions accompanied by allegations of lopsided decision-making. Last under debate in 2015 the ashes of the discussion cooled down with the supreme court regarding it as unconstitutional. If NJAC is unjust, why is the government enforcing its resurrection? The opacity in reasons behind the appointment accompanied by the lack of answerability lead to suspicion opening doors to nepotism, favoritism, and other forms of unfair acts, and hence no one to question the lack of diversity in this homogenous group.
In a sovereign country of the people, public input becomes an essential which collegium gives no way to.
Historical Background
As per the provisions of law, both of the above provisions state that the judges are to be appointed after "consultation" with appropriate judges of the apex court/the Chief Justice of India. Apex here refers to the supreme court of India.
1993: a nine-judge bench of the Supreme Court altered the meaning by stating how “consultation” has to be read as “concurrence” giving the ultimate decision-making power to the judges. A new system formed with primacy to CJI, consulted by two senior-most judges of SC was formed and is still applicable known as the Collegium.
Updates:
The judiciary is making changes to add credibility to the prevailing system, and resolutions by the collegium are no longer a short list of names recommended for judgeships. They have become detailed, publishing reasons, and discussions are being undertaken about the candidates.
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