Collegium Vs NJAC: Amidst a prolonged tussle between the Indian law ministry and the judiciary over the collegium system which recommends the appointment of judges, the government cleared the elevation of five judges recommended by the collegium on December 31, 2022. Kiren Rijuju, Union Minister of Law and Justice announced the new appointments on Twitter on February 4.
As per the provisions under the Constitution of India, Hon’ble President of India has appointed the following Chief Justices and Judges of the High Courts as Judges of the Supreme Court.
I extend best wishes to all of them. pic.twitter.com/DvtBTyGV42
— Kiren Rijiju (@KirenRijiju) February 4, 2023
While the clearing of judges’ names by the Central government comes as a relief to the overburdened judiciary, this may not be the end to the tussle between the government and the higher judiciary over the current system of appointment of judges which is done through the Collegium.
The Supreme Court of India and the Central Government have been at loggerheads for the past few months over the issue of the appointment of judges at the higher judiciary. The Government while questioning the transparency of the Collegium system for the appointment of judges at the higher judiciary, has been pitching in for the National Judicial Appointments Commission (NJAC). The higher judiciary, on its part, has been sticking to the grounds in defense of the existing Collegium system.
Let’s understand how the judges are appointed through the collegium system and what is the National Judicial Appointments Commission (NJAC), which the law ministry is pushing for.
इस देश का मालिक इस देश के लोग हैं, हम लोग सेवक हैं, सेवा करने के लिए आए हैं। मालिक कोई है तो वो इस देश की जनता हैं और हमारा गाइड संविधान हैं: केंद्रीय कानून मंत्री श्री @KirenRijiju जी pic.twitter.com/R5kzR7ENIp
— Office of Kiren Rijiju (@RijijuOffice) February 5, 2023
What is the Collegium system?
According to the Collegium system, the appointment and the transfer of judges are conducted according to the recommendations of the Chief Justice of India and the four senior-most judges of the Supreme Court.
The incumbent Chief Justice leads the Collegium that exists at the High Courts, along with two senior-most judges of the court.
It is pertinent to mention that the Collegium system is not present in the Constitution of India, but it evolved over the years through the judgements passed in the Supreme Court.
Government has a very limited role in the existing system. It can only order an inquiry to be conducted by the Intelligence Bureau (IB) when a lawyer is elevated to a level of a judge in the High Court or the Supreme Court.
The Government can raise objections in an appointment, but the decision of the Collegium is binding.
Problem with the system
The people who oppose the Collegium system often argue that the system lacks transparency and that it is a closed-door affair as the functioning and the conduct of affairs of the Collegium is never disclosed. made public.
What is the tussle about Collegium Vs NJAC?
The issue was reignited in November 2022, when Union Minister for Law and Justice Kiren Rijiju commented on the system, stating it to be “opaque” and that it needed reconsideration. Soon after, Vice President and Rajya Sabha Chairman Jagdeep Dhankar repeated the statement in Parliament on December 7, 2022. He said the striking down of NJAC through a Supreme Court judgment in 2015 was a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people’”.
What is NJAC?
The Constitution (99th Amendment) Act, was passed by the Indian Parliament in 2014. It proposed setting up a commission for the appointment of judges and it was aimed to replace the existing Collegium system. With the implementation of NJAC, the role of the Government would increase in the appointment of judges.
NJAC was proposed to comprise the Chief Justice of India, as the ex officio Chairperson two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio members, and two eminent persons from civil society. One of the members of society is nominated by the committee consisting of the Prime Minister of India, the CJI, and the Leader of the Opposition in the Lok Sabha. The other member was to be from the minority, SC, ST, OBC sections of the society or a female.
NJAC was repealed in October 2015, after the Supreme Court struck down the law.