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Do you think that the mechanism provided by the Constitutional (99th) ...

  Dec 9, 2016

Do you think that the mechanism provided by the Constitutional (99th) Amendment Act is restrictive of judicial independence

National Judicial Appointments Commission Act and Constitutional (99th) Amendment Act were recently   nullified by the apex court. The new NJAC limits the primacy of the judiciary and increases the government's power in appointments of judges to the higher judiciary. The NJAC is to be comprised of the chief justice of India and two senior-most Supreme Court judges, the union law minister and two "eminent people," one of whom would be drawn from the scheduled castes, tribes, minorities and other backward classes or women.

Some have argued that the NJAC violates judicial independence by creating a system in which the Collegium would no longer have primacy as the judiciary would not have majority in the NJAC. Also, NJAC would override the convention that Chief Justices are selected on the basis of seniority. Furthermore, NJAC grants Parliament the power to alter judicial selection criteria and procedures, which is a violation of judicial independence, separation of powers, and the rule of law. Further, NJAC allows the Union Law Minister, a major litigant before the court, to play a role in appointments and finally. NJAC violates separation of powers under Article 50.

Votaries, however argue that it is a broad based system. It has built in checks and balances. Rules of appointment are rigorously to be laid down. Collegium system did not do well.