“National Judicial Appointment Commission for Collegiums Reformation in India”

Abstract

Collegium is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India with four senior-most judges of the Supreme Court. Article 124 of Indian constitution says that, the appointment of judges should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary.  Article 217 says a judge should be appointed by the president after consultation with the chief justice of India and the Governor of the state.  In 99^th Constitutional Amendment replaced the collegiums system for the appointment of judges as invoked by the Supreme Court via judicial fiat by a new system. On 16th October 2015 the Supreme Court upheld the collegiums system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons.  Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure.

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.  In the case of S P Gupta v. union of India, Supreme Court declared that the primacy of the CJI’s recommendation to the President can be refused for cogent reasons and it will bring a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. In Advocates-on Record Association v. Union of India case, justice J S Verma said “justifiability” and “primacy” required that the CJI be given the “primal” role in judges appointment and supreme court held that, the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.  In the third Judges Case, only opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers. This paper basically analyzed the collegium reformation under national judicial appointment commission in Indian context.