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National Judicial Appointment Commission(NJAC) bill.

National Judicial Appointment Commission(NJAC) bill.

This Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).

The Bill has been introduced in conjunction with the Constitutional (121st Amendment) Bill, 2014, which establishes the National Judicial Appointments Commission (NJAC).

Composition of NJAC

It will be constituted with 6 members,

  1. law minister,
  2. CJI,
  3. 2 SC judges and
  4. 2 "eminent persons".

Atleast 5 members will have to agree on each judges' appointment.

Reference to Commission for filling up of vacancies

1. When a vacancy arises in the SC or HCs, the central government will make a reference to the NJAC.

2. Existing vacancies will be notified to the NJAC within thirty days of the Act entering into force.

3. When a vacancy arises due to the completion of term, a reference will be made to the NJAC, six months in advance.

4. For vacancies due to death or resignation, a reference must be made to the NJAC within thirty days of its occurrence.

Procedure for Selection of Supreme Court judges

Chief Justice of India: The NJAC shall recommend the senior most judge of the Supreme Court for appointment as Chief Justice of India.  This is provided he is considered fit to hold the office.

SC judges: The NJAC shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations.

Veto power of members: The NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.

Procedure for Selection of High Courts judges

Chief Justices of HCs: The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.

 

Appointment of other HC Judges: Nominations: Nominations shall be sought from Chief Justice of the concerned High Court for appointments of HC judges.

Eliciting views: The Commission shall nominate names for appointment of HC judges and forward such names to the Chief Justice of the concerned HCs for his views.

In both cases, the Chief Justice of the HC shall consult two senior most judges of that HC and any other judges and advocates as specified in the regulations.

 

Views of the Governor and CM: The NJAC shall elicit the views of the Governor and Chief Minister of the state before making recommendations.

Veto power of members: The NJAC shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.

Transfer of Chief Justices and High Court judges

The NJAC is to make recommendations for transfer of Chief Justices and other judges of the High Courts.

The procedure to be followed will be specified in the regulations.

Power of the President to require reconsideration

The President may require the NJAC to reconsider the recommendations made by it. If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.

Background

1. Before 1993 Law minister selected judges in consultation with judiciary.

2. After 1993 judiciary assumed supremacy and created their own collegiums in supreme courts and high courts. HC judge is appointed after a collegium of judges suggests his/her name, which then has to be cleared by a three member SC collegium. The three judges include CJI and atleast one SC judge who has been associated with that particular HC in the past. SC appointments cleared by 5 member collegium including CJI and 4 other senior most judges.

3. Present NJAC bill seeks to make selection process more transparent.

Questions

Does the bill have the risk of being struck down by the court as "ultra vires"?

No. Once the bill is passed by Rajya Sabha, the constitutional amendment bill will be sent to the states for ratification. It needs the approval of at least 15 states. A Constitution amendment bill, which seeks to make any changes in articles relating to the SC and HCs, has to be ratified by legislatures of not less than half the states before it is presented to the President for assent. After president's assent the bill becomes an act.

 

2. What if president returns the commission's  recommendation on appointments?

If the President returns the recommendation of the commission, the panel will not have to return it for reconsideration "unanimously". If the recommendation is returned to the President without an unanimous recommendation, the candidate will have to be appointed.

Source:

http://www.prsindia.org/billtrack/the-national-judicial-appointments-commission-bill-2014-3359/