National Judicial Appointment Commission 2014

1. National
Judicial
Appointment
Commission
Act 2014
Submitted by
E.Rajitha
LLM Second year ,GLC, Thrissur

2. The NJAC Act and the 99th Constitutional Amendment Act came into
force on 13 April 2015. The NJAC Act provides for the procedure to
be followed by NJAC for recommending persons for appointment and
transfer of chief Justice of India and other Judges of supreme court
(sc) and Chief Justice and other Judges of high courts (HC)

3. Independence of judiciary a sin
qua non of democracy
The constitution of India says the
 Executive ,Legislature And
Judiciary are the three arms of
our constitution .
 Judiciary is more powerful,
primarily because it has the
power of judicial review over
every action of the executive
and the legislature

4. Background
Constitutional provisions
regarding appointment of judges to SC &HC before the
amendment states that
Article 124(2) “every judge of the supreme court shall be
appointed by the president by warrant under his head
and seal after consultation with such of the judges of
the supreme court and of the high courts in the states as
the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five
years: provided that in the case of appointment of a
judge other than the chief Justice of India shall always
be consulted”

5. (Cont..)
 Article 217(1) says that “every judge of a High Court
shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of
India, the Governor of the State, and, in the case of
appointment of a Judge other than the Chief Justice, the
Chief Justice of the High Court and shall hold office, in
the case of an additional or acting judge, as provided in
Article 224, and in any other case, until he attains the
age of sixty-two years”.

6. (cont…)
 Practice followed till 1981: A practice had developed
over the last several decades according to which the
Chief Justice of India initiated the proposal, very often in
consultation with his senior colleagues and his
recommendation was considered by the President and,
if agreed to, the appointment was made.
 1981-1993: In a decision rendered by a seven-judge
Constitution Bench in S.P. Gupta vs. Union of India (AIR
1982 SC 149), the majority held that ‘consultation’ does
not mean ‘concurrence’ and ruled further that the
concept of primacy of the Chief Justice of India is not
really to be found in the Constitution.

7. (Cont…)
 In 1993, a nine-Judge Constitution Bench of the
Supreme Court in Supreme Court Advocates-on-Record
Association Vs. Union of India (1993 (4) SCC. 441)
over-ruled the decision in S.P.Gupta. The nine-Judge
Bench (with majority of seven) not only overruled S.P.
Gupta’s case , the primacy of the Chief Justice of India
was held to be essential.
 The 1993 decision was reaffirmed in third judges case
1998 [1998 (7) SCC 739] on a reference being made by
the President under Article 143 of the Constitution. The
Chief Justice of India and his four senior-most
colleagues were referred to as the ‘Collegium’ for the
purpose of appointment of Judges to the Supreme
Court.

8. (cont…)
Drawbacks of “collegium” system
 Unaccountability
 Political, communal consideration and favoritisms
 Question of merit, getting people of adequate ability on
bench
 Delay in appointing judges

9. Previous attempts for judicial appointment
commission
 121st Report of Law Commission of India for
Constitution of a National Judicial Service
Commission(1987):
The Report recommended that the Judicial Service
Commission should be composed of eleven persons,
namely, the Chief Justice of India and three senior most
Judges of the Supreme Court, the immediate
predecessor in office of the Chief Justice of India, three
senior most Chief Justices of the High Courts, Minister
for Law and Justice, the Attorney General of India and
an outstanding law academic.

10. (Cont…)
 TheConstitution (Sixty-seventh Amendment) Bill,
1990
provided for the constitution of a National Judicial
Commission should be composed of Chief Justice of
India as its Chairman plus two of his senior-most
colleagues. For recommending appointments to the
High Court, the Commission was to consist of Chief
Justice of India as its Chairman, the State Chief Minister,
one other senior-most Supreme Court Judge, the Chief
Justice of the High Court and one other senior-most
Judge of the High Court.

11. 99th Amendment Act 2014
Amends Article 124(2) of the constitution to provide
constitutional status.
1. ARTICLE 124A provides for composition of NJAC
consist of
i. Chief Justice of India(chairperson)
ii. Two senior most SC judges
iii. The union Minister of Law and Justice
iv. Two eminent persons (nominated by a committee
consisting of CJI, PM and leader of opposition in the
Lok Sabha).the eminent person is nominated for
period of .3 years and not eligible for re-nomination.

12. 2. FUNCTIONS (Article 124B) recommending for the
i. Appointment of CJI ,judges of SC, Chief justice and
other judges of HC ,
ii. Transfer of Chief justice and other judges of HC ,
iii. Ensuring recommended persons are of ability and
integrity.
3. Article 124C enables parliament to make laws to
regulate the procedure, functioning and manner of
selection of persons for appointment.

13. Highlights of NJAC Act 2015
 The Act prescribes time limit for intimation of
vacancies by the central government.
 Appointment will be based on the ability, merit
and any other criteria of suitability as specified
by the regulation.
 Veto powers of the members: The NJAC shall
not recommend a person for appointment if any
two members of the commission do not agree to
such recommendation.

14. (cont…)
 the Commission would frame the regulations
under Section 12 of the NJAC Act, 2014.The
NJAC's regulations would lay down the “criteria
of suitability”, the procedure and conditions for
selection and appointment of a Supreme Court
and High Court judges.
 The procedure for transfer of judges is specified
only through regulations.
 President may require to reconsider the
recommendation but after which president shall
make appointment.

15. Appointment of judges in other
countries
Appointment commissions
country No. of
member
s
Member background Binding/non binding
England
&Wales
15 Lawyers, judges,
laypersons
Nonbinding,
recommendation can
only be rejected once
Canada 7 Lawyers ,judges,
laypersons
Non binding but
convention restricts
choice to
commission's
recommendation
New York State 12 Lawyers and layperson
representative of more
than one political party
Appointee must be
from commissions
shortlist.

16. country No. of
members
Member
background
Binding/non binding
France 10 +President of
republic and
minister of
justice ex -officio
Judges, Prosecutors
&three who are
neither judges nor
legislators
In theory nonbinding
but president limited to
councils
recommendation,
binding for lower
courts
Germany 32+Federal
Minister of
justice ex-officio
State ministers of
justice and
appointees of
federal legislature
Binding
South
Africa
23 Ministers
,legislators, lawyers
,law professors,
judges
For S.C non binding
though president can
ask for a new shortlist
only once. Binding for
lower courts.
Appointment commissions
(Cont…)

17. “With regard to the question of the concurrence of the Chief
Justice, it seems to me that those who advocate that
proposition seem to rely implicitly both on the impartiality of
the Chief Justice and the soundness of his judgment. But after
all, the Chief Justice is a man with all the feelings, all the
sentiments and all the prejudices which we as common
people have; and I think, to allow the Chief Justice
practically a veto upon the appointment of judges is
really to transfer the authority to the Chief Justice which
we are not prepared to vest in the President or the
Government of the day”
- Dr.B.R.Ambedkar
Cad VOL VIII(1949)

18. Suggestions &Conclusion
 Qualification of Eminent Persons has to be prescribed . High
academicians from Law university, statesmen not involved in
the political polemics of the country may be included.
 Commission may prepare a panel for the H.C as well as the
S.C and release the name for public response
 Bright young judges should also be considered in selection
process in S.C other than relying on seniority principle.
 There is provision regarding merit based appointment in the
Act, a standardized criteria for evaluating merit should also
be included.
 The Act should have encouraged diversity in appointment in
terms of gender, religion, cast and ethnicity .

19. “The independence of judiciary is therefore not
the property of the judiciary but the commodity
to be held by the judiciary in trust for the
people”
-Lord Woolf (Chief Justice of England and Wales)

20. Reference
Books
• Pran chopra ” The Supreme Court versus the
constitution” A challenge to federalism ,sage
publications,2006
• Prof. G.Manohar Rao, Dr G.B.Reddy, V.Geeta Rao
“Judiciary in India, constitutional perspective” Asia Law
houses,2009
• Soli.J.Sorabjee ”Law &Justice-An Anthrology, Universal
Law Publishing Co.Pvt.Ltd,2003
• V.R.Krishna Iyer “Constitutional Miscellany" second
Edition,2003,Eastern Book Company.
Websites
• http//www.prsindia.org
• http//www.indiakannon.org last retrieved on 10/08/2015
•