The government notified the National Judicial Appointments Commission law on Monday and effectively brought to an end the two-decade old Collegium system of judicial appointments.
Now, the political class and civil society have an equal voice, along with the judiciary, in the appointments and transfer of judges in the highest judiciary.
The notification comes hardly 48 hours before a five-judge Bench of the Supreme Court was scheduled to hear a batch of petitions challenging the constitutionality of the NJAC law on April 15.
A recent Supreme Court circular had even informed the composition of the five-judge bench - Justices Anil R. Dave, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel – who were going to hear the petitions, which contends that NJAC encroaches into judicial independence.
But notification was made possible by the Supreme Court itself on April 7. The court, while referring the petitions to a larger bench, had refused to pass a stay order on the law coming into force.
Arguing the government's case in the Supreme Court recently, Attorney General Mukul Rohatgi had said the challenge to NJAC was “pre-mature”.
“Sunlight is the best disinfectant. We (Executive and Judiciary) are not two sides in a war. We can work with mutual respect. Everything in the evolving world is an experiment to better ourselves,” Mr. Rohatgi had submitted.
The road ahead
With the law being notified, the six-member Commission, with the Chief Justice of India as its Chairperson, would first have to be convened.
For this, the maiden step would be for a high-level selection panel comprising the Prime Minister, Chief Justice of India and the Leader of the single largest political party in the Lok Sabha, to meet and nominate two 'eminent persons' to the Commission.
The Commission comprises the CJI, two senior-most Supreme Court judges, the Union Law Minister and two eminent persons.
Once this is done, the Commission would frame the regulations under Section 12 of the NJAC Act, 2014.
The NJAC's regulations would lay down the “criteria of suitability”, the procedure and conditions for selection and appointment of a Supreme Court and High Court judges.
These regulations would detail the procedures for High Court Chief Justices to consult judges and eminent advocates about a prospective judicial candidate and elicit views of the Governor and Chief Minister. They would further lay down the procedure for transfer of High Court Chief Justices and judges, among others.
Once the regulations are laid down, these have to be placed before each House while they are in session for a total period of 30 days, cutting across one or more successive sessions, as necessary.
Modifications to the rules should be made if both Houses agree to them.
Once the rules are ratified, the government has to inform the Commission of the existing judicial vacancies within a period of 30 days for appointments to be done.
