Prachi Kumari, Student, Law School, BHU, Varanasi
Whether an Encroachment upon Independence of Judiciary or a Mechanism of bringing Transparency
Passing of 99th Constitutional Amendment Bill and National Judicial Appointment Commission Bill, 2014 overturning twenty year old Collegium System of judges has given rise to a debate across country. Some people are of view that it is an encroachment upon independence of judiciary whereas some people are of view that it would end all defects of collegiums system.
Initially, the system was that the Chief Justice used to recommend names and everything else was done by Executive. This system could not meet the objective of the doctrine of separation of power, which requires no interference of the organs of Govt. in the work of one-another. Therefore, collegiums system was brought by judiciary over the course of three cases i.e. S. P. Gupta V Union of India ((AIR 1982 SC 149)), S.C. Advocates on Record V UOI ((AIR 1994 SC 268)),and In Re Special Reference Case (1998).
Collegium System has been under severe criticism for non-transparency, and therefore Parliament moved to bring this new system of appointment of judges through NJAC. Under the new system, the Chief Justice of India will head the NJAC. Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the law minister will be the other members of the proposed body.
The prominent people, one of whom will belong to either of SC/ST, OBC, minorities or a woman, will be selected by a panel of Prime Minister, Chief Justice of India and the leader of the opposition in the Lok Sabha or the leader of the largest opposition party in the Lower House.
As we see, the NJAC consists of six members out of whom three are not having legal background, but they possess dominating role. Law Minister is not a jurist and therefore he is not supposed to have first-hand information about a lawyer. He cannot be trusted to evolve good selection criteria for appointment of a judge.
As per Santosh Hedge,J. Collegium System should stay. He agrees that there have been some mistakes in the past, but he also says that there is no systematic fault in the Collegium System.
I am also of the view that NJUC encroaches into judicial independence and is against the doctrine of Separation of Power. This doctrine was evolved with an objective of protecting the country from chaos or disorder, which may arise by interference of organs of Govt. in the work of one-another. Moreover, this doctrine makes judiciary more significant, when executive gets corrupt, because it may work independently to remove corruption from executive.
Thus, the new system is not an effective tool to bring transparency and it should not be given preference over collegiums system.