National Judicial Commission Bill: Key Takeaways

The statements made by the Law Minister and the Supreme Court regarding the Collegium System have been in the news. But, this never-ending tussle between the two independent institutions, i.e., the Government and the Judiciary in relation to the appointment of the judges, can be dated back in history.

The history of adverse suppression of Justice HR Khanna by Justice HM Beg at the cost of standing for equality, justice, and good consciousness and other similar incidents led to the introduction of the Collegium System,^[i] thereby giving independence in the hands of the Apex Court for decisions pertaining to the appointment of judges and binding the Government to appoint the judges recommended by the collegium. But the Government has never been fully satisfied with the collegium system.

Recently, a private member bill was introduced by Member of Parliament of CPI(M)’s Bikash Ranjan Bhattacharya, Senior Advocate in Rajya Sabha last month to regulate the appointments of judges to the High Courts and the Supreme Court, i.e., National Judicial Commission Bill, 2022. It is to be noted that this is not the first attempt by the Government to regulate the appointment of judges. Previously, the National Judicial Appointment Commission was introduced via the 99th Constitutional Amendment Act 2014, which was declared unconstitutional by the Apex Court. Hence, it becomes pertinent to elucidate the key takeaways of the newly introduced National Judicial Commission Bill, 2022. Read the full text of the Bill here:

Key Takeaways from the National Judicial Commission Bill, 2022

The main purpose of the said bill is threefold, i.e., to regulate the appointment procedure, transfer, and removal of judges.

Appointment Procedure

The bill provides that the Central Government within 30 days from the date of coming into force of the said act; six months before the occurrence of any vacancy, thirty days from the date of occurrence of vacancy due to death or resignation of the judges of High Court and Supreme Court shall reference the names of the judges to the Commission. The Commission shall mean National Judicial Commission referred to in article 124A of the Constitution, i.e., the Chief Justice of India, two senior-most judges of the Supreme Court, Union Minister of Law and Justice and two eminent persons.^[ii]

Concerning the selection of the Chief Justice of India, the Commission shall recommend the appointment of the senior most judge of the Supreme Court provided he is considered fit to hold office. The selection of the other judges of the Supreme Court and High Court shall be based on ability, merit, and any other criteria of suitability as may be specified by regulation and eligibility as per Article 124(3)^[iii] and Article 217(2)^[iv] , respectively. On receiving the recommendation, the president shall appoint judges. In the case of re-consideration of the appointments, the bill gives supremacy to the recommendation of the Commission.

Transfer Procedure

The bill provides that the transfer of the Chief Justices of the High Court and other judges of the High Court shall be recommended by the Commission

Judicial Standards

The said bill provides for judicial standards that are to be followed by the judges, which are as followings:

• No judge must contest an election for any office of a club, society, or other associations, irrespective of its connection with any court. In other words, the judge shall not hold any other office.
• No judge shall have close association and interactions with the members of the bar who practise in the same courtrooms.
• No judges shall allow immediate members of the family to appear before him or decide any matter in which the parties are family members, relatives, or friends.
• No judge shall enter into public debates or express his opinion on a matter that is sub-judice for the court of law.

Establishment of Complaint Scrutiny Panel

The bill provides for setting up a complaint scrutiny panel in the Supreme Court and in every High Court to look into the complaint received against the judges. The said panel shall consist of Former Chief Justice of the Supreme Court and two judges of the Supreme nominated by the Commission, and in respect of the High Court, the panel shall consist of a Former Chief Justice of that High Court and two Judges of that High Court to be nominated by the Commission in consultation with the Chief Justice of that High Court. While scrutinising the complaints, the panel shall have all the powers of the civil court under the Code of Civil Procedure.

Establishment of Investigation Committee & Removal of the Judge

The bill also provides for an investigating committee for the Commission to inquire regarding the misbehaviour of the judges on the report recommended by the Complaint Scrutiny Panel.

On a detailed investigation and inquiry by the investigating committee, if the Commission is satisfied that the charges of misbehaviour or incapacity of the judge are true, it shall request the judge to voluntarily resign. And in case it fails to resign, the Commission shall advise the president to proceed with the removal of the judge.

The bill provides for a further motion to be passed in both houses of the parliament, and if the report of the investigation committee is satisfactory, the motion is adopted by each House of Parliament in accordance with Article 124(4)^[v] of the Indian Constitution.

Conclusion

After looking at the brief overview of the said bill, it can be concluded that the main objective of the said bill is to “lay down judicial standards and provide for accountability of Judges, and establish a credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or a High Court and to regulate the procedure for such investigation; and for the presentation of an address by Parliament to the President in relation to proceeding for the removal of a Judge.”

Though the bill has been introduced in the Rajya Sabha, the said bill was opposed by the Aam Aadmi Party. According to the author, the reason for such opposition is reasonable. Article 50 of the Constitution provides for the separation of powers between the judiciary and executive indirectly, implying that independence for both limbs of democracy is important. Hence, an independent judiciary without any interference from politics will ensure the smooth functioning of the justice delivery system. And, the judiciary and the Government need to walk on the thin demarcation of non-interference and independence.

Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

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^[i] It is a five-member body consisting of four senior most judges of the Supreme Court and the Chief Justice of India.

^[ii] These two eminent persons shall be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in the House of the People.

^[iii] A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and —

(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

^[iv] (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and —

 (a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court 3 or of two or more such Courts in succession;

^[v] A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.