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National Judicial Appointments Commission

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For the commission in England and Wales, see Judicial Appointments Commission.

National Judicial Appointments Commission, 2014
Parliament of India
  • An Act further to amend the Constitution of India.
Citation99th Constitutional Amendment Act
Territorial extentIndia
Assented to15 August 2014
Commenced31 December 2014
Repealed16 October 2015
Status: Repealed

The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments of India. The commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.[1][2] The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission.[3][4][5][6] The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014.[7] The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.[8][9][10][11]

On 16 October 2015, the Constitution Bench of Supreme Court by a 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead petitioner.[12][13] Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.[14]

Constitution of NJAC

A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition

As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:

These (two) eminent persons would have been nominated by a committee consisting of the

  • Chief Justice of India,
  • Prime Minister of India, and
  • Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Promotional Hierarchy

All India Judicial Service

The All India Judicial Service Officers are group 'A' gazetted officers and shall be directly recruited at the rank of Judicial Magistrate 2nd Class cum Munsif Judge/Metropolitan Magistrate after clearing the All India Judicial Service Examination. The promotional hierarchy of All India Judicial Service officers shall be

  • Chief Justice of Supreme Court
  • Justice of Supreme Court/Chief Justice of High Court
  • Justice of High Court
  • Principal District & Session Judge /Principal Judge of Family Court
  • Additional District and Session Judge/Additional Judicial Commissioner
  • Chief Judicial Magistrate cum Sub-Judge/Chief Metropolitan Magistrate
  • Judicial Magistrate 1st Class cum Munsif Judge/Metropolitan Magistrate
  • Judicial Magistrate 2nd Class cum Munsif Judge/Metropolitan Magistrate

The promotional hierarchy of All India Legal Service (Group 'A' gazetted officers) shall be

  • Attorney General of India
  • Solicitor General of India
  • Additional Solicitor General of India
  • Second Additional Solicitor General (Government of India)/Notary Public/Joint Law Officer/Judge Advocate General to Indian Armed Forces
  • Senior Government Advocate (Government of India)/Notary Public/Additional Law Officer/Senior Government Advocate/Deputy Judge Advocate General to Indian Armed Forces
  • Additional Government Advocate (Government of India)/Notary Public/Joint Legal Advisor to the Union Government/Law Secretary to Government of India/Junior Advocate General to Indian Armed Forces
  • Deputy Government Advocate (Government of India)/Notary Public/Additional Legislative Counsel/Additional Legal Advisor to the Union Government/Legal Advisor to Governor of State/Law Secretary of India/Junior Advocate General to Indian Armed Forces
  • Deputy Government Advocate (Government of India)/Deputy Law Officer/Deputy Legislative Counsel/Deputy Legal Advisor to the Union Government/Deputy Law Officer/Junior Advocate General to Indian Armed Forces
  • Assistant Government Advocate (Government of India)/Assistant Law Officer/Assistant Legislative Counsel/Assistant Legal Advisor to the Union Government/Junior Advocate General to Indian Armed Forces
  • Assistant Government Advocate (Government of India)/Junior Advocate General to Indian Armed Forces
  • Junior Central Government Advocate/Superintendent (Legal)
  • Law Associate cum Research Assistant in Courts and Tribunals/Para-legal to the Union Government

There shall be one state regional legal service cadre per state of India. The promotional hierarchy of State Regional Legal Service (Group 'B' gazetted officers) shall be

  • Advocate General of State
  • Additional Advocate General /Notary Public/Government Pleader
  • Additional Advocate General/Notary Public/Assistant Government Pleader
  • Deputy Advocate General/Public Prosecutor/Notary Public
  • Government Advocate/Special Public Prosecutor/Notary Public/Additional Legislative Counsel/Law Secretary of State
  • Government Advocate/Additional Public Prosecutor
  • Deputy Government Advocate/Additional Special Public Prosecutor
  • Deputy Government Advocate/Assistant Public Prosecutor
  • Law Associate cum Research Assistant in Courts and Tribunals/Para legal to the State Government

All of the "Central Legal Services" (Group 'A' gazetted officers) shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, statutory corporations, national apex bodies, public sector units, subsidiaries of public sector units, divisions of public sector units and all other government establishments under Government of India. The hierarchy of central legal service officers in any of the central government establishments under the government of India shall be in the following manner.

  • Principal Chief Legal Advisor cum Attorney to any of the central government establishments
  • Chief Legal Advisor cum Attorney to any of the central government establishments
  • Deputy Legal Advisor cum Attorney to any of the central government establishments
  • Assistant Legal Advisor cum Attorney to any of the central government establishments
  • Legal Assistant to any of the central government establishments

The list of "central legal services" cadres shall be as follows:

  • Central Agriculture & Farmers Welfare Legal Service
  • Central Animal Husbandry, Dairying And Fisheries Legal Service
  • Central AYUSH Legal Service
  • Central Chemicals and Fertilizers Legal Service
  • Central Coal Legal Service
  • Central Commerce and Industry Legal Service
  • Central Communications Legal Service
  • Central Consumer Affairs, Food and Public Distribution Legal Service
  • Central Corporate Affairs Legal Service
  • Central Culture Legal Service
  • Central Defence Legal Service
  • Central Development of North Eastern Region Legal Service
  • Central Earth Sciences Legal Service
  • Central Electronics and Information Technology Legal Service
  • Central Environment, Forests and Climate Change Legal Service
  • Central Finance Legal Service
  • Central Food Processing Industries Legal Service
  • Central Health and Family Welfare Legal Service
  • Central Heavy Industries and Public Enterprises Legal Service
  • Central Home Affairs Legal Service
  • Central Housing and Urban Affairs Legal Service
  • Central Information and Broadcasting Legal Service
  • Central Jal Shakti Legal Service
  • Central Labour and Employment Legal Service
  • Central Micro, Small and Medium Enterprises Legal Service
  • Central Mines Legal Service
  • Central Minority Affairs Legal Service
  • Central New and Renewable Energy Legal Service
  • Central Petroleum and Natural Gas Legal Service
  • Central Ports, Shipping and Waterways Legal Service
  • Central Power Legal Service
  • Central Rural Development Legal Service
  • Central Road Transport and Highways Legal Service
  • Central Railways Legal Service
  • Central Science and Technology Legal Service
  • Central Skill Development and Entrepreneurship Legal Service
  • Central Social Justice and Empowerment Legal Service
  • Central Statistics and Programme Implementation Legal Service
  • Central Steel Legal Service
  • Central Textiles Legal Service
  • Central Tourism Legal Service
  • Central Tribal Affairs Legal Service
  • Central Women and Child Development Legal Service
  • Central Youth Affairs and Sports Legal Service

There shall be as many "State Legal Services" cadres per state of India as decided by the state governments of India. "State Legal Service" Group 'B' gazetted officers shall be allotted to all the attached offices, specialised units, autonomous organisations/bodies, regulatory bodies, statutory bodies, state apex bodies, statutory corporations, public sector units, subsidiaries of public sector units, divisions of public sector units etc. and all other government establishments under each of the state governments of India. The hierarchy of state legal service officers in any of the state government establishments under any of the state governments of India shall be in the following manner.

  • Principal Chief Legal Advisor cum Advocate to any of the state government establishments
  • Chief Legal Advisor cum Advocate to any of the state government establishments
  • Deputy Legal Advisor cum Advocate to any of the state government establishments
  • Assistant Legal Advisor cum Advocate to any of the state government establishments
  • Legal Assistant to any of the state government establishments

The list of "state legal services" cadres shall be as follows:

  • To be decided by the state governments of India in their respective state

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

  • 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.
  • Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
  • Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.

Procedures to be followed by the Commission

The National Judicial Appointments Commission Bill, 2014, had laid down the following procedures for the selection of the Judges of the higher judiciary.

Procedure for selection of Supreme Court judges

Chief Justice of India

The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of India. This is provided he/she is considered fit to hold the office. However, this must be according to the knowledge one possesses rather than the age.

Supreme Court judges

The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.

The Commission 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 High Courts

The Commission shall 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 High Court judges

The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall consult two senior-most judges of that High Court and any other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor and Chief Minister of the state before making recommendations. The Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Challenge to the constitutionality

The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer associations and groups before the Supreme Court of India through public interest litigation writ petitions.[15] Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging the validity of NJAC on the ground that the challenge was premature as the constitutional amendment and the NJAC Act had not been notified then.[16] After the fresh challenge in 2015 after the acts were notified, a three judge bench of the Supreme Court referred the matter to a Constitution Bench.[17]

SC declares NJAC unconstitutional

In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014 meant to replace the two-decade old collegium system of appointing judges in the higher judiciary.[18][19] The judgement was hailed by lawyers Prashant Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jayaprakash Narayana opposed it.[19][20][21]

Support for NJAC

The only one of the five-judge bench who opposed the majority decision was Jasti Chelameswar, who held that the proposed composition of the NJAC would not be a constitutional issue, and that it could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”[22]

Later developments

On 3 November 2015 the Supreme Court upheld that it is open to bringing greater transparency in the collegium system within the following existing four parameters, with opinions from both the parties(petitioners who challenged the NJAC and the government).[23][24]

  • How the collegium can be made transparent
  • The fixing of the eligibility criteria for a person to be considered suitable for appointment as a judge
  • A process to receive and deal with complaints against judges without compromising on judicial independence
  • Debate on whether a separate secretariat is required, and if so, its functioning, composition and powers

On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court that the central government will not prepare a draft memorandum for judicial appointments contrary to committed earlier and suggested the same to be done through a judgement.[25]

See also

References

  1. ^ "The Constitutions (Ninety-ninth) Amendment) Bill, 2014" (PDF). Govt, of India. Retrieved 15 August 2014.
  2. ^ "Rajya Sabha Passes First NJAC Bill". Bloomberg TV India.
  3. ^ "National Judicial Appointments Commission Bill, 2014" (PDF). Retrieved 15 August 2014.
  4. ^ "National Judicial Appointments Commission Bill, 2014". PRS Legislative Research. Retrieved 15 August 2014.
  5. ^ "The Constitution (121st Amendment) Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  6. ^ "National Judicial Appointments Commission Bill, 2014" (PDF). Parliament of India. Retrieved 25 August 2014.
  7. ^ "New judicial panel gets President's nod, collegium system ends". Times of India. PTI. 31 December 2014. Retrieved 1 January 2015.
  8. ^ "National Judicial Appointments Commission – Overview". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  9. ^ "Constitution (Ninety-ninth Amendment) Act, 2014" (PDF). Gazette of India. Retrieved 14 April 2015.
  10. ^ "National Judicial Appointments Commission Act, 2014 (40 of 2014)" (PDF). Gazette of India. Retrieved 14 April 2015.
  11. ^ "NOTIFIED: Constitution (Ninety-ninth Amend) Act, 2014 & National Judicial Appointments Commission Act, 2014". 1, Law Street. 13 April 2015. Retrieved 30 April 2015.
  12. ^ "Supreme Court Advocates-on-Record - Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF 2015)" (PDF). Supreme Court of India. 16 October 2015. Retrieved 17 October 2015.
  13. ^ "Supreme Court upholds collegium system of appointment of judges, rules NJAC unconstitutional". IBN Live. 16 October 2015.
  14. ^ "NJAC Act unconstitutional, collegium system to continue: Apex Court". The Hindu Business Line. Press Trust of India. 16 October 2015. Retrieved 26 October 2018.
  15. ^ "NJAC Act and 99th constitutional amendment faces challenge at Supreme Court; petitions by AoR Association and Senior Advocates". 1, Law Street. 2 January 2015. Retrieved 3 June 2015.
  16. ^ "NJAC premature challenge dismissed by the Supreme Court". 1, Law Street. 25 August 2014. Retrieved 3 June 2015.
  17. ^ "Supreme Court refers NJAC Challenge to Constitution Bench – SCAORA v. UOI". 1, Law Street. 8 April 2015. Retrieved 3 June 2015.
  18. ^ "SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]". 1, Law Street. 16 October 2015. Retrieved 21 October 2015.
  19. ^ a b "SC declares NJAC unconstitutional, upholds Collegium". THE HINDU. 16 October 2015.
  20. ^ ""India has taken a step backwards by retaining the collegium" - Senior Advocate KK Venugopal". Bar & Bench. 20 October 2015. Archived from the original on 21 October 2015. Retrieved 21 October 2015.
  21. ^ "From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act". FIRSTPOST. 16 October 2015.
  22. ^ Dev, Atul. "What the Indian judiciary has done to itself". The Caravan. Retrieved 20 July 2019.
  23. ^ "SC asks Centre to compile views to improve judge appointments". The Hindu. 3 November 2015.
  24. ^ "Collegium system will remain in existing parameters, says Supreme Court". IBN Live. 3 November 2015.
  25. ^ "AG pulls out of drafting procedure to appoint judges". The Hindu. 19 November 2015.
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