As it's a constitutional amendment hence after being passed from Rajya Sabha now it would be sent to states for ratification. As per norms a constitutional amendment needs ratification by more than 50% state assemblies. As all parties are almost unanimous, hence the collegium system would be history and the new system would be replaced soon.
Question is whether this NJAC Bill would serve better? Before going to that subject let's understand what were the provisions of appointment of Judges in Supreme and High Courts till date. Until 1993, Union law ministers were selecting Judges in consultation with Judiciary. Post 1993 Judiciary assumed primacy by creating collegium system in Supreme Court and High Courts.
High Court judges were appointed after the names suggested by a collegium of the particular High court and cleared by Collegium of three Supreme Court Judges, out of which one used to be Chief Justice of India (CJI) and another judge must have associated with that particular High Court. For appointment of a SC judge there used to be collegium of 5 member Supreme Court judges including CJI.
The proposed Judicial Appointment Commission would be a six member committee that comprises of CJI, two Supreme Court judges, Union law minister, and two eminent persons. The two eminent persons would selected on the recommendation of PM, LOP and CJI. At least 5 members have to agree on each Judges' appointment.
Now let's discuss merit and demerit of each system. Pre 1993 arrangement was considered as prevalence of executive over judiciary as the Law Minister selects the Judges to be appointed. Although the appointments were duly consulted with Judiciary but criticism was there that political consideration always prevailed then, that leads to arbitrariness. Not only appointment but also transfer and promotions of judges were also under law minister, thus judiciary's independence was many a time questioned apart from political selection.
Thus post 1993, Supreme Court assumed 'Primacy' on the basis of judiciary independence and formulated the collegium arrangement. But this is too criticized while calling it as a close door and secret selection of judges solely on discretion of a few circle. In this process some corrupt judges too were appointed which was rare aberration although most of the Judges appointed were good and capable.
But still questions were thrown upon this collegium system on the ground that their search of Judges covers a limited circle and all other qualified and capable candidates never get a chance. For example the collegium member's wisdom is the only key criteria and according their information, they select the judge.
Will the proposed NJAC work successfully? Well, definitely it would give some transparency than the collegium system but again I personally think that it wouldn't improve the selection procedure much. It must be noted here that NJAC too will select with at least 5 member's agreement. Whenever the question on selection comes, the discretionary term is automatically associated. Here there might be many candidates short listed first. But the final decision would again be arbitrary. If any two members somehow colluded to keep some one's name out, they would definitely be successful despite the competence of a candidate and endorsement by 4 members!
My point is the word select or selection is still being the key for appointment. Why not a fare test system where merit would be evaluated and no discretionary act would be there. Like UPSC, why shouldn't be there UJSC (Union Judicial Service Commission). Like other services let there be examinations for judicial services too so that from the beginning of the carrier Judges with merit and talent could be appointed, who as per his promotion even can retire as CJI after his carrier.
In the mean time the Judges' appointment from the pool of advocates should also be done by conducting examinations. Any type of test or examination always arrest discretion. If there is no discretion and sound system of appointment, then it would be truly transparent and a flawless system.
For these things to happen I think the nation has to wait for some more years. Thus in the exigency of the time, the NJAC appears to be slightly better. Hope there would be further improvement in the Judges Appointment system.
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