Article 124 (2) states Judges should be appointed by President of India after consultation with Chief Justice of India and the Judges of Supreme Court and High Court that President deems necessary.
After the 3 Judges cases, Supreme Court laid down the method of appointment of judges as follow
- Collegium of Chief Justice and four senior most judges must recommend for the appointment of Supreme Court judges
- Collegium of Chief Justice and two senior most judges must recommend for the appointment of High Court judges
Supreme Court also laid down that recommendation to President will be binding in nature.
Drawbacks in Collegium system: As Judges appoint other judges in collegium system, there are cases of favoritism by senior judges.
To remove this disadvantage two bills was introduces in Parliament
- 121st Constitutional amendment bill to amend the articles relating to the appointment of judges
- NJAC bill
National Judicial Appointments Commissions (NJAC) bill was passed by Parliament in order to remove the flaws in the judge’s appointment by collegium system.
Member of NJAC are
- Chief Justice of India (Chairperson)
- Two senior judges
- Union Law Minister
- Two eminent nominated by the committee consisting of Chief Justice of India, Prime Minister and Leader of Opposition (LoP) in Lok Sabha
Supreme Court’s argument against of NJAC
- Two eminent persons is contentious provision as NJAC cannot recommend any person for appointment or transfer if two member of NJAC are against of the recommendation thereby giving political and civil society a veto power in the committee.
- There must be primacy of judiciary over the government for the appointment and transfer of judges
- Judiciary should be separated from executive and as per Article 50 of the constitution of India, State shall take steps for the separation of Judiciary from executive
- With the participation of executive, judiciary independence will be effected disastrously
- NJAC will bread the culture of favours between government and judiciary.
Government’s argument in favour of NJAC
- In democratic country, representative of people must have say in the appointment and transfer of judges.
- In democracy we must recognize the wisdom of people and their representative
- Along with the judiciary independence, a system of checks and balance are also basic structure of the constitution.
- Sidelining the political and civil society in the process of appointment and transfer is against of democratic principle.
- Even in the other developed and democratic countries like USA, UK etc., there is a mechanism and involvement of political and civil society in the appointment of judges.
From the above it is clear that the appointment of judges should be done by the committee like NJAC but the contentious issues like nomination of eminent persons, veto power and involvement of Union Law Minister should be removed so that judiciary independence and checks and balance can be fulfilled. There is a need for the system of appointment of judges which should not be vitiated by executive patronage or judicial nepotism.