Why in news?
- In recent weeks, the government has reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the apex court to defend the present Collegium system..
What is the present Collegium system?
- Under the system, the Chief Justice of India along with four senior-most Supreme Court judges recommend appointments and transfers of judges.
- A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two senior most judges of that court.
- The Collegium system is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
- In this system, the government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
- The government can also raise objections and seek clarifications regarding the Collegium’s choices, but, if the Collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them to the post.
So what’s the problem with the Collegium system?
- Critics of this system say it lacks transparency, since it does not involve an official mechanism or secretariat.
- It is a closed-door affair in every sense no one knows when the Collegium meets or how it takes its decisions.
Can the Collegium system be replaced?
- Replacing the Collegium system calls for a Constitutional Amendment Bill; it requires a majority of not less than two-thirds of MPs (Members of Parliament) present and voting in Lok Sabha as well as Rajya Sabha.
- It also needs the ratification of legislatures of not less than one-half of the states.
What exactly is the NJAC?
- The Constitution (99th Amendment) Act, which established the NJAC and the NJAC Act, was passed by Parliament in 2014 to set up a commission for appointing judges, replacing the Collegium system. This would essentially increase the government’s role in the appointment of judges.
- The NJAC was 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 member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minister and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.
- The laws were repealed in October 2015 after the Supreme Court struck them down citing violation of independence of judiciary.