December 19, 2022
Good morning. In today’s either/view, we discuss whether the Collegium System or the NJAC is the best approach for appointing judges. We also look at the panel set up to monitor inter-faith marriages in Maharashtra, among other news.
📰 FEATURE STORY
Collegium System versus the National Judicial Appointments Commission
The judiciary serves a vital purpose in any functioning democracy. They have to take care of the constitution. Now, taking care here means interpreting it and abiding by it. It’s a tricky job that comes with a lot of scrutinies, which isn’t necessarily a bad thing. One place the judiciary often finds itself is in the middle of a political tussle. It’s not the ideal position to be in.
There’s currently an ongoing debate on how judges should be appointed to the Supreme Court (SC), the highest court in the land. The government is unhappy with the collegium system. The Court struck down the National Judicial Appointments Commission (NJAC). We’ve got these duelling narratives on judicial appointments.
Context
To slightly amend the intro of this piece, an independent judiciary serves a vital purpose in any functioning democracy. While the constitution was being framed, Dr Ambedkar said the judiciary should be independent of the executive and competent. Going back to 1981, a bench of the SC stated the executive would be integral in judicial appointments.
Going by the constitution, Articles 124 and 217 state appointments of judges to the courts are in the executive’s hands. In the beginning, since the constitution was adopted, the executive made the appointments after consulting the judiciary. This gave the executive primacy, later affirmed by the Supreme Court. Things began to change as some appointments were criticised for being political. The SC ruled the judiciary will have primacy.
The collegium system came to be based on a recommendation by the Bar Council of India in 1981. This involved the Chief Justice of India (CJI) and the court’s senior-most judges. That same year, the SC stated the importance of having the collegium system. The court was uneasy with the power bestowed to a single individual, the President. The court said it was unwise due to possible external influences and biases.
The NJAC was established through a constitutional amendment passed by the Parliament in 2014. This was seen as a replacement for the collegium system. The NJAC would’ve been responsible for the recruitment, appointment, and transfer of judicial and legal officers. In 2015, the SC struck it down. Petitions were filed by several groups, including the Supreme Court Advocates on Record Association (SCAoRA), which led the way.
Now, the debate on what’s the best way to appoint judges has been reignited. While legal experts concede there’s no perfect way, the government has criticised the collegium system while others say it’s the best option available.
VIEW: Collegium criticism off base
The recent criticism by the Law Minister and the Vice President is incorrect. Again, the collegium system isn’t perfect, but it’s the best option and can be improved. As it stands, the senior-most judges of the SC decide. This ensures the judges aren’t beholden to any political party or leader. It’s the best way to have an independent judiciary.
Take the alternative, the NJAC. The government is unwilling to accept the SC’s decision on it being struck down. But the NJAC itself was poorly drafted and problematic. It had an even number of members, six. However, the CJI had no casting vote. What would happen in case of a tie? There had to be two eminent members, and one had to be a woman or belong to SC/ST category. This person didn’t need to have any connection with the law.
For high court judges, the selection procedure was bizarre. Not only would the NJAC nominate candidates, but so would the CJI and two senior-most judges. What if they were different? Will one get preference over the other? Whatever limitations the collegium system has can and should be rectified per the NJAC judgment. It’s imperative to leave such an important decision away from partisan politics as much as possible.
COUNTERVIEW: NJAC the better approach
When the NJAC case was being argued in court, former Attorney General Mukul Rohatgi, speaking for the Centre, said the petitioners invoking the Second Judges case didn’t apply. He said the 1993 ruling interpreted Article 124 and held the term “consultation” to be concurrence. But the NJAC would replace that with the recommendation of the NJAC.
Arguments that it would dilute the judiciary’s power were also incorrect. In fact, as Rohargi argued, it diluted the power of the executive to only one member, the Law Minister. The basic structure of the constitution, upheld by several SC rulings, remained intact under the NJAC since its chairperson is the CJI. The crux of the argument for the NJAC boils down to keeping judicial appointments in the context of the judiciary’s independence and the need for checks and balances.
The collegium has been criticised in the past for being too secretive. As former finance minister Arun Jaitley put it, it was akin to a gymkhana club. Former CJI Justice Lodha concluded the system is opaque. There wasn’t a standing committee or transparency. Jaitley stressed the need to be credible above independent. He questioned the exclusivity of judges who appoint judges without any interference by the executive.
Reference Links:
- Judicial Appointments in India — A Critical Analysis – SCC Blog
- Pick and Choose: Judicial Appointments in India – Constitution Net
- Collegium System in India – Legal Services India
- All you need to know about NJAC – Mint
- What’s NJAC and what really happened? – India Today
- SC Bench strikes down NJAC Act as ‘unconstitutional and void’ – The Hindu
- NJAC debate: Collegium system was like a gymkhana club, says Arun Jaitley – Firstpost
- Debating the NJAC: Round-Up and (Tentative) Conclusions – Indian Constitutional Law and Philosophy
What is your opinion on this?
(Only subscribers can participate in polls)
a) The collegium system is the best approach to appointing judges.
b) The NJAC would be a better approach to appointing judges.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
India’s economy: Hurry, hide those blemishes, writes RN Bhaskar
For the Left:
How Nehru’s Love for China Sealed Tibet’s Fate and Compromised India’s Interest
🇮🇳 STATE OF THE STATES
University to invest in smart city project (Uttar Pradesh) – An agreement to build a “smart city of knowledge” project in the state for an investment of USD 42 billion was signed on Sunday by officials of Austin University and the Uttar Pradesh government ahead of the Uttar Pradesh Global Investors Summit.
Why it matters: On 5,000 acres of land, a project worth USD 42 billion will be constructed. The top universities will be developed within the initiative. It seeks to alter how people in India and other countries view higher education.
Projects worth ₹6,800 crores inaugurated (Tripura) – Prime Minister Narendra Modi visited Meghalaya and Tripura to dedicate, inaugurate, and lay the foundation for numerous projects worth ₹6,800 crores in both states that are headed to the polls. Elections in Meghalaya and Tripura will take place early next year.
Why it matters: The Grih Pravesh programme for Pradhan Mantri Awas Yojana – Urban and Pradhan Mantri Awas Yojana – Rural beneficiaries will be introduced by Prime Minister Modi in Tripura. In order to increase the production of mushroom spawn and to give farmers and business owners skill training, he also opened the Spawn Laboratory at the Mushroom Development Center in Meghalaya.
Bihar Appropriation Bill passed in Assembly (Bihar) – The Bihar Appropriation (No. 4) Bill, 2022 was approved by the state assembly on Friday, paving the way for the state government to take ₹19,048.98 crores from the treasury for the fiscal year 2022–2023.
Why it matters: The education department will get ₹2,247 crores, rural development ₹1,895 crores, road construction ₹1,860 crores, energy ₹1,390 crores, building construction ₹1,105 crores and agriculture ₹342 crores.
Panel to monitor interfaith marriages (Maharashtra) – On Thursday, the Eknath Shinde-led Maharashtra government set up a 13-member state-level committee to track and keep a record of interfaith marriages, such partners, and their families. The state’s minister for women’s and children’s development, Mangal Prabhat Lodha, will serve as the chairman of the “interfaith marriage-family coordination committee.”
Why it matters: Political experts assert that the Bharatiya Janata Party and Shinde’s Sena-led Maharashtra government are laying the groundwork for a future attempt to enact an anti-religious conversion bill shortly after the 13-member panel was established. Nine states have already enacted anti-conversion laws, according to recent data.
More IT hubs in tier II towns (Telangana) – The Telangana government is constructing IT centres in five more districts as part of its efforts to decentralise the expansion of information technology (IT). K. T. Rama Rao, the state’s minister of information and technology, stated on Saturday that IT centres are developing in Nizamabad, Mahbubnagar, Nalgonda, Siddipet, and Adilabad.
Why it matters: Since IT is primarily available in Hyderabad, the state government has already developed a strategy to expand it to tier-II cities.
🔢 KEY NUMBER
23.50 lakh – After creating a property ID (identification) by mapping and survey, over 23.50 lakh new properties in Haryana’s urban areas have been identified for tax payment. With this, a total of 42.70 lakh properties are required to pay taxes.