Why In News

● The impasse over appointment of judges

● Referring to the 2015 verdict of the SC which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, Mr. Dhankhar asked how the judiciary could have run down a unanimously-passed constitutional provision which reflected “the will of people”.

What was the NJAC?

In August 2014, Parliament passed the Constitution (99th Amendment) Act, along with the National Judicial Appointments Commission (NJAC) Act, which together provided for the creation of an independent commission to appoint judges to the Supreme Court (SC) and High Courts (HC).

● This commission was to replace the collegium system.

● The two Bills were ratified by the required number of State Legislatures and got the President’s assent on December 31, 2014.

● Articles 124 and 217 of the Constitution deal with the appointment of judges to the SC and HCs of the country.

● Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the SC and the HCs.

● So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three SC judgments — usually referred to as the ‘Judges Cases’.

● In order to replace this system which received criticism over the years for its lack of transparency, among other provisions, the Constitution (99th Amendment) Act, introduced three primary Articles.

● Article 124A which created the NJAC, a constitutional body to replace the collegium system, Article 124B which conferred the NJAC with the power to make appointments to Courts and Article 124C which accorded express authority to Parliament to make laws regulating the manner of the NJAC’s functioning.

● Under the NJAC Act, the Chief Justice of India and Chief Justices of the HCs were to be recommended by the NJAC on seniority while SC and HC judges were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations”.

Why was the NJAC challenged?

● It also stated that the amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges was an integral part.

● The Second Judges Case of 1993 emphasised the role of the CJI in appointing judges to SC and HCs.

● “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,” the verdict reasoned.