Collegium vs NJAC: Govt seeks participatory role in judicial appointments


Ever since the Supreme Court declared the NJAC unconstitutional and void, all eyes have been on the Government to see how it responds to the controversial judgment.

The Supreme Court of India, on Tuesday, was informed that there won’t be a “complete” change in the Collegium System of selection of judges, rather the government desired a “participatory” role by involving the President and the Prime Minister in the process of judicial appointments.

The memorandum of the procedure, which governs the appointment of judges in the Supreme Court and high courts, was put in place succeeding two apex court judgments in the 1990s that established the collegium giving prevalence to the Chief Justice of India in making such appointments.

Both the Supreme Court and the government have a different position on National Judicial Appointments Commission (NJAC) and collegium system, making it a bone of contention between the two pillars of Indian democracy.

National Judicial Appointments Commission is a proposed body which would be responsible for the appointment and transfer of judges to the higher judiciary in India. It would recommend judges for the appointment for the post of the Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts.

It would also look after the transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. The body would, as it states, ensure the individual’s ability, merit and other criteria mentioned in the regulations related to the act.

Whereas in the Collegium System, the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend the appointments and transfers of judges. The system has evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998).

The biggest criticism put across by the government against collegium system is that it’s creating imperium within imperia in the Supreme Court. The system is also blamed for being a ‘give and take’ arrangement building a gap between the “haves” and the “have-nots”, which according to them is also the reason for the delay in justice delivered by them.

This internal cluster of negotiation to be in the bracket of “haves” can possibly be attributed to greed, corruption in high judicial collaboration, which can undesirably affect the interest of this country.

Though no structural reform can guarantee a change in personal deeds, but a stringent enforcement of a structured law can obligate people to improve their performances. In a democratic system of society, where the government works for the people, the aim should be of providing an unambiguous judicial system for the people to be happy and confident of the decisions taken by the authority.

The government should try to provide the same by bringing reforms to even the top most authority of constitutional watchdogs, and with NJAC, the government claims to target the same.

Nothing can be rectified without the prior knowledge of its prevalence, hence this opaque collegium system needs to be reviewed. The government might not be right in all its assertions on the collegium system but, with NJAC being implemented, the reality can come in the public domain. This will create a transparent atmosphere of work through which the civic society can develop a sense of empowerment and confidence in the judicial system of India.

Lastly, in the fast developing society of India, changes are bound to take place and there is no harm in trying innovative ways to achieve the ultimate motto of the betterment of our society. The collegium system was also an amended attempt to improve the previous ‘executive-controlled system’ and now, with the loopholes of the collegium system becoming apparent, India should not shy away from trying the new methods provided by National Judicial Appointments Commission.