New Delhi: A new law to replace the much-criticised collegium system is likely to be brought into force only after two eminent persons who would be part of the proposed high-level commission are nominated. Besides nominating these two persons, the government has to put in place rules governing the National Judicial Appointments Commission (NJAC) Act.
"Also, a place befitting the stature of the Commission from where it will function has to be finalised before moving ahead," a senior government functionary said.
President Pranab Mukherjee gave his nod to the NJAC Bill and an accompanying Constitutional Amendment Bill last week. 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. The functionary said while the names of the eminent persons are finalised, the Law Ministry will start drafting the rules for the proposed body as mandated in Section 11 of the NJAC Act.
The Commission will frame its own regulations as prescribed in Section 12 of the Act. He said while government finalises a place for the Commission to function, some appointments of people to man the administration of the new body will also have to be made.
President Mukherjee's signing the two bills into a law paved the way for the scrapping of the 20-year-old collegium system, by which judges appoint judges to the higher judiciary. Once the Act is notified, 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. But the new law is not without its critics. Shortly after Parliament gave its nod to the two bills, four PILs in the Supreme Court had sought declaration of the bills as unconstitutional as they allegedly violated the basic structure of the Constitution by infringing on judicial independence.
A bench led by Justice AR Dave had refused to entertain the petitions, observing that it was too premature for the court to intervene as the Constitution Bill was yet to be ratified by the states.
However, the bench had observed that the parties could move the apex court on the same ground at an appropriate stage. An earlier effort by the NDA-I government in 2003 to replace the collegium system met with no success. The then NDA government had introduced a Constitution amendment bill but Lok Sabha was dissolved when the bill was before a Standing Committee. Finance Minister Arun Jaitley was the Law Minister then.
The UPA II had also brought a similar bill but it lapsed following the dissolution of the 15th Lok Sabha. The practice of judges appointing judges started after a 1993 Supreme Court judgement, replacing the system of government picking judges for higher judiciary comprising the apex court and high courts.
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, required a constitutional amendment.