On 14th August 2014, Parliament passed the National
Judicial Appointments Commission Bill 2014 and 121st Constitutional
Amendment Bill to scrap the collegium system of appointing Supreme Court
and High Court judges and to regulate the procedure.
The bill was introduced in Lok Sabha along with the
Constitution (One Hundred and Twenty- First Amendment) Bill, 2014 in the Lok Sabha
by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on 11th August
2014. This amendment bill gives Constitutional status to the proposed
Commission.
On 13th August 2014 Lok Sabha passed The National Judicial
Appointments Commission Bill, 2014, by voice vote along with official
amendment. The members also passed the 121st Constitution Amendment
Bill with 367 voting in favour and no one against it.
On 14th August 2014 Rajya Sabha unanimously
passed this Constitution Amendment Bill for setting up the NJAC and the National
Judicial Appointments Commission Bill, 2014.
Now this constitutional amendment bill now has to be
ratified by 50 per cent of the State legislatures before it is sent for the
President’s assent.
The National Judicial Appointments Commission Bill, 2014
The Bill has been introduced in conjunction with the
Constitutional (121st Amendment) Bill, 2014, which establishes the National
Judicial Appointments Commission (NJAC).
The Bill provides for the procedure to be followed by the
NJAC for recommending persons for appointment as Chief Justice of India and
other Judges of the Supreme Court (SC), and Chief Justice and other Judges of
High Courts (HC).
The Headquarters of the Commission shall be at Delhi.
Reference to Commission for filling up of vacancies
When a vacancy arises in the SC or HCs, the central
government will make a reference to the NJAC.
Existing vacancies will be notified to the NJAC within
thirty days of the Act entering into force.
When a vacancy arises due to the completion of term, a
reference will be made to the NJAC, six months in advance.
For vacancies due to death or resignation, a reference must
be made to the NJAC within thirty days of its occurrence.
Procedure for Selection of Supreme Court judges
Chief Justice of India: The NJAC shall recommend the
senior most judge of the Supreme Court for appointment as Chief Justice of
India. This is provided he is considered
fit to hold the office.
SC judges: The NJAC shall recommend names of persons
on the basis of their ability, merit and other criteria specified in the
regulations.
Veto power of members: The NJAC shall not recommend a
person for appointment if any two of its members do not agree to such
recommendation.
Procedure for Selection of High Courts judges
Chief Justices of HCs: The NJAC is to recommend a
Judge of a High Court to be the Chief Justice of a High Court on the basis of
seniority across High Court judges. The ability, merit and other criteria of
suitability as specified in the regulations would also be considered.
Appointment of other HC Judges:
Nominations: Nominations shall be sought from Chief
Justice of the concerned High Court for appointments of HC judges.
Eliciting views: The Commission shall nominate names
for appointment of HC judges and forward such names to the Chief Justice of the
concerned HCs for his views.
In both cases, the Chief Justice of the HC shall consult two
senior most judges of that HC and any other judges and advocates as specified
in the regulations.
Views of the Governor and CM: The NJAC shall elicit
the views of the Governor and Chief Minister of the state before making
recommendations.
Veto power of members: The NJAC shall not recommend a
person for appointment if any two members of the Commission do not agree to
such recommendation.
Transfer of Chief Justices and High Court judges:
The NJAC is to make recommendations for transfer of Chief
Justices and other judges of the High Courts.
The procedure to be followed will be specified in the
regulations.
Power of the President to require reconsideration
The President may require the NJAC to reconsider the
recommendations made by it.
If the NJAC makes a unanimous recommendation after such
reconsideration, the President shall make the appointment accordingly.
The Constitution (121st Amendment) Bill, 2014
This Bill seeks to enable equal participation of Judiciary
and Executive, ensure that the appointments to the higher judiciary are more
participatory, transparent and objective.
The Constitution (121st Amendment) Bill amends the
provisions of the Constitution related to the appointment of Supreme Court and
High Court judges, and the transfer of High Court judges.
Why there is need to create NJAC:
Article 124 (2) of the Constitution provides that the President
will make appointments of Supreme Court (SC) and High Court(HC) judges after
consultation with the Chief Justice of India and other SC and HC judges as he considers
necessary.
The Bill amends Article 124 (2) of the Constitution to
provide for a Commission, to be known as the National Judicial Appointments
Commission (NJAC). The NJAC would then make recommendations to the
President
for appointments of SC and HC judges.
Composition of the NJAC:
A new Article, Article 124A provides for the composition of
the NJAC.
The NJAC would consist of:
(i) Chief Justice of India (Chairperson)
(ii) Two senior most Supreme Court Judges
(iii) The Union Minister of Law and Justice
(iv) Two eminent persons (to be nominated by a committee
consisting of the Chief Justice of India, Prime
Minster of India and of
Opposition in the Lok Sabha)
Of the two eminent persons, one person would be from the
SC/ST/OBC/minority communities or be a woman. The eminent persons shall be
nominated for a period of three years and shall not be eligible for
re-nomination.
Functions of the NJAC:
A new Article, Article 124B,
provides for the functions of the NJAC which include:
(i) Recommending persons for appointment as Chief Justice of
India, Judges of the Supreme Court, Chief Justices of High Courts and other
Judges of High Courts;
(ii) Recommending transfer of Chief Justices and other
Judges of High Courts from one High Court to any other High Court; and
(iii) Ensuring that the persons recommended are of ability
and integrity.
Power of Parliament to make law on procedures:
A new Article, Article 124C, enables Parliament to pass a
law to:
(i) Regulate the procedure of appointments, and
(ii) Empower the NJAC to lay down the procedure for its functioning,
and manner of selection of persons for appointment, through regulations.
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