The NJAC bill has been signed by the President after ratification by 16 states to replace the two decade old collegium system to appoint of judges in High Courts and the Supreme Court. The only step left to trigger the fresh system is to notify the date from which the new legislation will come into force. NJAC would be a six member panel headed by Chief Justice of India and it will include two senior-most Judges of Supreme Court of India, Union Minister of Law and Justice and two “eminent” persons nominated by a Committee comprising of Prime Minister, CJI and Leader of Opposition in the Lok Sabha or leader of the largest opposition party in Lok Sabha.
The validity of NJAC has been challenged in the Supreme Court which is currently pending. Last year the NJAC Bill was challenged but was not decided considering it pre-mature. According to a petition filed by Advocates-on-Record Association of the Supreme Court, the NLAC violates “altered the basic structure of the constitution”. It also sought a declaration from the Apex Court against NJAC as “invalid, void and unconstitutional”. As the question of law surrounds 3 earlier decisions of the Supreme Court including ones decided by nine judge benches, this matter might be referred to a 11 judge bench and it would be interesting to see what the court declares specially after the people’s government of 16 states, parliament and the president has given their assent to it.
This is a historic head on collision between the direct will of the people (legislators) v the indirect will (judiciary). The judiciary approved mechanism has been over stepped by a fresh phenomenon coined by the parliamentarians with full majority. The law ministry has to avoid an issue made it clear that till notification, the collegium system will continue. The ministry has also reportedly cleared around 50-60 names for elevation to respective High Court benches. It has also been made clear that the government does not intend to encroach upon the powers of judiciary and wants to exhaust the system only through a democratic process.
Fresh appointments are therefore not stopped & It also implies that till the new system overrules the old system, collegiums are free to take a decision on appointments. In a welcome decision, the Union Law Ministry has assured the CJI that the government would not notify the Commission till the apex court disposes off the petitions. Since NJAC is not notified as on date the process of appointments can’t be stopped nor can the appointments be done via NJAC. It is only through the old system that appointments are done till the petitions challenging NJAC are heard and decided.