New Delhi: Government on Monday brought into force a controversial law to appoint members to the higher judiciary, two days before a Constitution Bench of the Supreme Court hears a clutch of petitions challenging the National Judicial Appointments Commission Act.
The notification bringing into effect from on Monday the National Judicial Appointments Commission (NJAC) Act along with a Constitutional Amendment Act (99th Amendment Act) to give constitutional status to the new body was issued by Department of Justice in the Law Ministry.
A bunch of petitions moved by the Supreme Court Advocates on Record Association (SCAORA), Bar Association of India and some individual lawyers challenging NJAC and the Constitition amendment will come up for hearing before the Constitution Bench on Wednesday.
Functionaries in the Law Ministry said with the notification, technically the collegium system has come to an end. But, at the same time, they said the new body may take some time to come into into being.
Prime Minister Narendra Modi will now have to call Chief Justice of India H L Dattu and Congress’ Mallikarjun Kharge, the leader of single largest opposition party in Lok Sabha, to nominate two eminent persons to the NJAC.
The NJAC will have to ratify the rules governing its functioning in the first meetings before they are notified. The draft rules are ready with the government.
Under the collegium system, which came into existence in 1993 after a Supreme Court judgement, five top judges of the apex court recommend transfer and elevation of judges to Supreme Court and 24 High Courts.
The government can return the recommendation to the collegium under this system. But it has to accept the recommendation if it is reiterated by the collegium.
The collegium system had come under fire for lacking transparency by politicians and some eminent jurists, who contended that judges appointing judges without any say of the Executive has led to complaints of nepotisim and favouritism.
But successive CJIs have defended the system saying it has stood the test of time and was working without any hitches.
On April 7, a Supreme Court bench while referring the matter to a larger bench had refused to stay the implementation of the National Judicial Appointments Commission Act.
Law Minister D V Sadananda Gowda had last week said the government would like to have a “united show” in running the new body to recommend appointment and transfer of Supreme Court and High Court judges with the judiciary as it will be headed by the Chief Justice of India.
He said from nominating two eminent persons to the NJAC to ratifying the rules, the CJI has an important role.
NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014.
According to the new Article 124 A inserted in the Constitution, two eminent persons will be nominated to the Commission as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or where there is no such LoP, then the leader of single largest Opposition party.
One of the eminent persons will be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.
The eminent persons will be nominated for a period of three years and will not be eligible for renomination.
The NJAC will be headed by the Chief Justice of India. Two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel. Secretary, Justice in the Law Ministry will be the convenor of the NJAC.
President Mukherjee’s signing the two bills into a law paved the way for the scrapping of the 20-year-old collegium system.
Once new system comes into place, the task of selecting and transferring Supreme Court and high court judges will finally shift from the collegium to a committee headed by the Chief Justice of India.
The NJAC Act provides for the procedure to be followed by the NJAC for recommending persons for appointment of judges of the Supreme Court, and Chief Justice and other judges of the 24 high courts.
The Constitutional Amendment Act grants constitutional status to the composition of the proposed commission. It was done following demands by jurists and judges who felt that without a constitutional status, the composition could be altered by a future government by an ordinary legislation.
A government bungalow at Mathura Road here has already been earmarked for NJAC and there are plans to appoint initial staff from the existing strength of the three departments — Legal Affairs, Legislative and Justice — of the Law Ministry.
An earlier attempt by the then BJP government in 2003 to scrap the collegium system had failed. The then Law Minister Arun Jaitley had moved a bill in this regard but the Lok Sabha was dissolved when the bill was pending with the Parliamentary Standing Committee.