The NJAC कैसे बेहतर है ?
Some countries have commissions comprising members of the judiciary and legal academia, politicians, and laypersons to appoint judges. India could take lessons from them
भारत में पेंडिंग केस की स्थिति ?
In April, while 60 lakh cases remained pending at various High Courts, 30% of the seats remained vacant, according to a report published by the Department of Justice.
Collegium system versus NJAC
क्या जजों की नियुक्ति का तरीका ही केस की पेंडिंग का कारण है ?
The problem of appointment of judges, which is linked to the problem of pendency of cases, has always been a matter of debate in India.
Delays in appointments
1 These are often caused by a standoff between the executive and the judiciary.
2 This was exacerbated when the Supreme Court struck down as unconstitutional the National Judicial Appointments Commission (NJAC) Act, 2014,
and the 99th Constitution Amendment, 2014, which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
3 court said that
collegium system, which is in place, protects the independence of the judiciary.
collegium system is criticised
for its
- lack of accountability
- Lack of transparency,
- nepotism.
1 The proposed body would have replaced the collegium system.
2 component
NJAC was to be
- head - Chief Justice of India,
- Law Minister
- two eminent persons,
- and two senior judges.
3 supreme court -
🌺The judiciary contended that the NJAC would give the government excessive control over selection of judges, therefore undermining its independence.
🌺The Court determined that the NJAC may jeopardise impartiality and objectivity in the appointment process, thus endangering judicial independence.
न्यायालय ने निर्धारित किया कि एनजेएसी नियुक्ति प्रक्रिया में निष्पक्षता और वस्तुनिष्ठता को खतरे में डाल सकता है, जिससे न्यायिक स्वतंत्रता खतरे में पड़ सकती है।
4 a number of legal professionals, including former judges, have argued that the NJAC is a better system.
If appointments of judges have to take place faster, we need to bring back the NJAC.
Lessons from other countries
committee / कमीशन के माध्यम से नियुक्ति
१ Upon reviewing the process of judicial nominations in other nations, we find that most of them are made by a committee established by the
- administrative
- and legislative branches of government.
२ For instance, the Constitutional Reform Act, 2005
introduced by the U.K., established two Commissions for the purpose of choosing candidates: one for the courts in England and Wales, and the other for the Supreme Court.
A 15-member commission, called the Judicial Appointments Commission, is designated to oversee the nomination of judges to the courts of England and Wales.
It comprises the
- chairman, who is always a lay member;
- six judicial members, including two tribunal judges;
- two professional members — they must be a Barrister in England and Wales, Solicitor of the Senior Courts of England and Wales, or Fellow of the Chartered Institute of Legal Executives, but both cannot hold the same qualification;
- five lay members;
- one non-legally qualified judicial member.
switched to - appointments commission system
Many countries have switched to an appointments commission system.
South Africa
has a Judicial Service Commission (JSC) that advises the President to appoint judges. The current JSC comprises the
- Chief Justice of South Africa,
- the President of the Supreme Court of Appeal,
- a Judge President,
- Minister of Justice,
- two practicing advocates,
- two practicing attorneys,
- a professor of law,
- six persons designated by the National Assembly,
- four persons designated by the President,
- and four permanent delegates to the National Council of Provinces.
In France
१ the President of the Republic holds the constitutional duty to safeguard the independence of the judiciary but does not directly select judges.
२ High Council of the Judiciary
Judges are chosen through a process involving the High Council of the Judiciary (Conseil Supérieur de la Magistrature)
or, in the case of lower courts, by the Minister of Justice who may consult or receive advice from the High Council.
These models, which provide space to members of the judiciary, of legal academia, politicians, and laypersons, are progressive appointment systems. India could take lessons from them.
Reworking NJAC
The NJAC कैसे बेहतर है ?
१ was an elegant / गुड reform. It could have resulted in faster nominations of judges because of its democratic structure.
२ collegium system
under which the
- Chief Justice along
- with four/two senior-most Supreme Court judges,
favouritism ?
which could prevent competent and deserving judges from being appointed.
३ The NJAC could
provide a more efficient method of appointing judges, encouraging communication between the arms of the state, and addressing some of the perceived drawbacks of the collegium system.
The way forward
ultimately necessitates a nuanced strategy that balances the justifiable concerns of all parties involved and guarantees that the new system will increase efficiency without jeopardising the integrity of judicial appointments.
Attaining this equilibrium is vital for maintaining the rule of law and public confidence in the judiciary. In India, delayed justice is all too common and we need to think of ways of preventing this.
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