Procedures for Selection of Judges in HC & SC

What is the National Judicial Appointments Commission?

the National Judicial Appointments Commission propose a transparent and broad-based process of selection of judges of the Supreme Court and high courts. They were to be selected by the commission whose members were be drawn from the judiciary, legislature and civil society.

How were judges appointed before?

According to The Constitution’s Articles 124 and 217 dealt with the appointment of judges of the higher judiciary. According to above these articles, judges could be appointed by the President of India after consulting the Chief Justice of India (CJI) and other judges.

Mainly The word consultation is significant because in 1993, in the Second Judges case, the SC decided that the CJI must agree to all judicial appointments. This created the collegium system, wherein the three seniors most Supreme Court judges decided on who would be a high court or Supreme Court judge.

What was to be the role of the National Judicial Appointments Commission?

It would have replaced the collegium. With the National Judicial Appointments Commission amendment, Articles 124 A, B and C were added to the Constitution to make the NJAC valid.

Articles 124 A and B define the National Judicial Appointments Commission, its members and their duties, while Article 124 C empowers Parliament to make laws in the future to regulate the procedure for the appointment of judges.

Who would have been on the NJAC?

The CJI was to head the six-member commission, other members of which would have been the law minister, two senior Supreme Court judges and two eminent people.

A collegium comprising the Prime Minister, the CJI and the leader of the single largest party in Lok Sabha would have selected the two eminent people. One eminent person would have been nominated from among the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women.

How did the collegium system come about?

This collegium system evolved after three landmark judgements of the SC known as the ‘three judges cases’: the first, second and the third judges cases.

In India, The first judge’s case was the SP Gupta case. It decided on December 30, 1981, that the President could, with sensible reasons, refuse judges’ names recommended by the CJI. This gave the executive more power than the judiciary in the appointments process.

In the second judges case, a nine-judge bench of the SC went the other way and created the collegium by reversing the first judges case: the majority verdict written by justice JS Verma in the Supreme Court Advocates on Record Association vs the Union of India case on October 6, 1993, said that the CJI must be given the primary role in judicial appointments.

Notwithstanding, the three judges ruling in this case could not agree on the precise role of the CJI in the process, leading to years of confusion surrounding the appointment and transfer of judges.

The last judgement in the series, the 1998 third judges case, cleared things up after the President asked the Supreme Court to do so. In this case, the SC came up with nine guidelines on how the collegium system should function. This cemented the supremacy of the judiciary in the appointment and transfer of judges.

NJAC is the acronym for National Judicial Appointments Commission which is a constitutional body recommended to replace the present Collegium system of appointing judges.

The Collegium system is one in which the Chief Justice of India and a forum of 4 senior-most judges of the Supreme Court recommends appointments as well as transfers of judges. The Central government has criticized the collegium system saying that it has created an imperium in imperia within the Supreme Court. The Supreme Court Bar Association also blamed this system for creating a “give-and-take” culture because the politicians and other famous personalities get instant relief from courts, the common man struggles for justice.

NJAC was a proposed body which has the responsibility of appointing and transfer of judges to the higher judiciary in our country. The NJAC was established by amending the Constitution Act (99th Amendment) in 2014 and passed by the Lok Sabha on 13th August 2014 and the Rajya Sabha on 14th August 2014.

The Commission would consist of the following six members:

  • Chief Justice of India
  • Two other senior judges of the Supreme Court next to the Chief Justice of India
  • The Union Minister for Law and Justice,
  • Two eminent persons

These eminent persons are nominated by a committee consisting of the Chief Justice of India.

Prime Minister of India and Leader of Opposition in the Lok Sabha provided that one person would be from the SC or ST or OBC or minority communities or a woman. These persons are nominated for a period of three years and not eligible for re-nomination.

Selection Procedure for 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 that he/she is considered fit to hold the office. However, this is according to the knowledge rather than the age.

Supreme Court Judges: The Commission should recommend the names of persons on the basis of their ability, merit and other criteria specified in the regulations.

The Commission cannot recommend a person for an appointment if any two of its members not agree to such recommendation.

Selection Procedure for High Courts judges

Chief Justices of High Courts: The Commission should recommend a Judge of the 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.

Md Sahabuddin Mondal

Junior Advocate, Calcutta High Court

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