Notification signals end of collegiums but new system yet to be put in place
GN Bureau | April 14, 2015
The union government has notified the National Judicial Appointments Commission Act, 2014 and the Constitution (Ninety-ninth Amendment) Act, 2014 to end the collegium system in the appointment of judges in higher judiciary.
The notification came days before the Supreme Court is to begin hearing the constitutional validity of the law and the amendment—the NJAC Act and the related constitutional amendment—on April 15.
The collegium system (not mentioned in the constitution of India) allowed a small group of judges to appoint judges to higher courts for over two decades. Under the collegium system, neither the legislature nor the executive had any role in the appointment of judges to high courts and the supreme court.
Instead, the matter was decided by small groups—or collegiums—of judges, a system that finds no mention in the Constitution. The government’s decision on Monday has now brought the two laws into force. The collegium system has technically come to an end. But, at the same time, the new body may take some time to come into being.
Two bills titled were passed unanimously by the Lok Sabha on 13.08.2014 and Rajya Sabha on 14.08.2014 respectively. These bills were ratified by the required number of State legislatures before getting the President’s assent. The Constitution (One Hundred and Twenty First Amendment) Bill, 2014 enacted as the Constitution (Ninety Ninth Amendment) Act and the National Judicial Appointments Commission Act, 2014 were published in Gazette of India on 31st December 2014.
Both the Acts come into force on such date as the central government would notify them in the Official Gazette April 13, 2015).
The Constitution (Ninety Ninth Amendment) Act, 2014 provides for the composition and the functions of the proposed NJAC. The Acts provide for a transparent and broad-based process of selection of Judges of the Supreme Court and High Courts by the National Judicial Appointments Commission (NJAC). The NJAC would be chaired by the Chief Justice of India as in the earlier collegium system.
The NJAC membership would include two senior most Judges of the Supreme Court, the Union Minister of Law and Justice, two eminent persons to be nominated by a committee of the prime minister of India, the chief justice of India, and the leader of the opposition. With a view to ensuring that the composition of the NJAC inclusive, the Act provides that one of the eminent persons shall be nominated from amongst persons belonging to the Scheduled Caste, the Scheduled Tribes, Other Backward Classes, Minorities or Women. The NJAC will frame its own regulations.
A three-judge bench of the apex court on April 7 referred several petitions challenging the constitutionality of the government move to a five-judge bench. It said that the petitions had raised “substantial questions of law as to the interpretation of the Constitution” that needed to be heard by a constitution bench of five judges. But it refrained from ordering a stay on the law.