The National Judicial Appointments Commission (NJAC) Act, which Parliament passed in 2014 but was struck down by the Supreme Court the following year, came up in Parliament last Friday amid media reports of alleged cash recovery from the residence of Delhi High Court Judge Yashwant Varma (an internal inquiry report has confirmed the presence of cash). Addressing the Rajya Sabha, Vice-President Jagdeep Dhankhar said it bothered him that “the incident happened and did not immediately surface”. He said that “if the malaise had been dealt with, perhaps we would not have countenanced such kind of issues”. Dhankhar then referred to the NJAC Act that was meant to overhaul judicial appointments but was struck down by the court. “That historic legislation endorsed by this Parliament with unprecedented consensual support unknown to parliamentary history of this country dealt with the malaise very severely,” he said. Parties across the spectrum have started speaking up about the Judge Varma issue, with the Congress on Saturday saying that the “incident has shocked the nation”. “The judiciary was the last bastion of justice. When trust erodes here, where do citizens turn?” Congress general secretary K C Venugopal (organisation) said on X. How are judges appointed currently? It happens through the collegium system. For judges of the Supreme Court, the Chief Justice of India, along with four senior-most Supreme Court judges, decides on the appointments and transfers. Similarly, High Courts too have collegiums led by the incumbent Chief Justice and two senior-most judges of that court. The Collegium system is not rooted in the Constitution. It has its genesis in a series of Supreme Court judgments called the “Judges Cases”. The Collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the “Judges Cases”. In this system, the government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a person 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. Replacing the Collegium system calls for a Constitutional Amendment Bill; it requires a majority of not less than two-thirds of MPs present and voting in the Lok Sabha and the Rajya Sabha. It also needs the ratification of legislatures of not less than half of the states. What was the NJAC? A few months after it came to power for the first time, the Narendra Modi government, in August 2014, brought in the NJAC Act. Almost all the parties in both Houses of Parliament and more than 50% of states, including those led by the Congress and the Left, unanimously ratified laws to bring in the NJAC Act to replace the Collegium system of appointment of judges to the higher courts. The NJAC was to comprise the Chief Justice of India (CJI) 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. At the time, Finance Minister Arun Jaitley asserted that the primacy of the judiciary in the selection of judges would continue since the CJI would head the NJAC and two of the senior-most judges would be among its six members. The executive, he said, would only be represented by one person, the Law Minister. Jaitley said while the independence of the judiciary was part of the Basic Structure of the Constitution and must be maintained, an elected government too was part of the structure. He asked whether it was not an aberration if its views were not considered. “The balancing act is to let this power be collectively exercised,” he said. “We are restoring the spirit of the Constitution. while maintaining the primacy of the judiciary.” The government also sought to dispel apprehensions about the selection of the two eminent personalities in the commission. Noting that they will be selected by a panel comprising the Prime Minister, CJI, and the Leader of the Opposition in the Lok Sabha, Prasad said, “Should we not trust their collective wisdom? If they can govern the country well, they can select eminent persons as well.” The Congress voted with the government but Kapil Sibal, then in the party, questioned the Bill on the issue of “independence of the judiciary”. Sibal also announced that he would move the Supreme Court, challenging the Act, but didn’t do so citing ethical issues as he had dealt with the issue as law minister. At the time, BSP leader Mayawati demanded reservation for SC, ST, and OBCs in the judiciary. Responding to this, then Law Minister Ravi Shankar Prasad said the NJAC would come up with a data bank to scout talented lawyers from the weaker sections who could be elevated as judges. But then a year later, the Supreme Court declared the amendment unconstitutional. A five-judge Constitution Bench ruled with a 4:1 majority that judges’ appointments shall continue to be made by the Collegium system, in which the Chief Justice of India will have “the last word”. The Bench underlined that the NJAC sought to interfere with the independence of the Judiciary, of which appointment of judges and the primacy of the judiciary in making such appointments were “indispensable” features. What is the Opposition stand on NJAC now? The Opposition is no longer sure about an NJAC. Amid statements from Union Law Minister Kiren Rijiju and Shankhar supporting the NJAC, Congress leaders said they were unlikely to support the Bill if it was brought back. Congress leader Jairam Ramesh said at the time: “This whole issue is being orchestrated at various levels … expect the NJAC to be back or at least keep the threat of it alive so as to get the Judiciary to fall in line.” Congress Working Committee member Abhishek Singhvi said at the time: “The Congress is unlikely to support, though, in the absence of any suggested move by the government, we cannot be expected to give our decision in advance.” The Trinamool Congress’s Sukhendu Sekhar Ray said: “.The way the government is bent on encroaching upon Constitutional authorities, particularly the Judiciary, our party may consider the present unpleasant scenario in its proper perspective. Ministers and even the Vice President of India have unleashed a direct attack on the independence of the Judiciary.” The RJD's stand was that it would not oppose an NJAC, provided the Bill provided for reservation. “All institutions in a democratic country should have a representative character, and should reflect the diversity of caste and community. The Collegium system has not been able to address the issue of the widest possible representation, an Indian reality,” RJD leader Manoj Jha said.
