In 2015, the Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
A heated debate about judicial appointments has persisted in the seven years since then.
Recently, Vice-President Jagdeep Dhankhar questioned how the judiciary could have run down a unanimously passed constitutional provision which reflected “the will of people”. The Supreme Court has also invoked the verdict to question if the government’s “unhappiness” over the failure of the NJAC was why it was sitting on the names recommended by the Supreme Court Collegium. Law Minister Kiren Rijiju has also commented about how the NJAC could have provided a transparent alternative to the decades-old Collegium system of appointing judges.
The 83rd All India Presiding Officers Conference, which kicked off on January 11, 2023, will also see the top officers of the country’s legislative bodies discuss relations between judiciary and legislature as part of the agenda.
Here is what all you need to know about the NJAC, the collegium, and a seven-year-old debate.
What is the NJAC?
The National Judicial Appointments Commission (NJAC) was a constitutional body proposed to replace the long-standing Collegium system of appointing judges.
How and when was the NJAC established?
The NJAC was established by amending the Constitution [The Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014, and by the Rajya Sabha on August 14, 2014. The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 State legislatures and received the President’s assent on December 31, 2014. Both the NJAC Act and the Constitutional Amendment Act came into force on April 13, 2015.
These acts outlined the creation of an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system.
What changes were proposed?
-In the Constitution
To replace the collegium system, the Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124. Article 124A created the National Judicial Appointments Commission (NJAC). Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts, and Article 124C gave Parliament the power to make laws regulating the NJAC’s functioning. The NJAC was to be composed of six people-
- The Chief Justice of India as the ex officio Chairperson
- Two senior-most Supreme Court Judges as ex officio members
- The Union Minister of Law and Justice as ex officio member
- Two eminent persons from civil society - to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women. These persons were to be nominated for a three-year term and were not eligible for re-nomination.
-The NJAC Act
The NJAC Act prescribed the procedure to appoint judges. The Chief Justices of India and the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended based on ability, merit, and “other criteria specified in the regulations”. The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
What are the current Constitutional provisions for appointing judges?
Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country. Article 124(2) states that “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the Supreme Court and the high courts, “as the President may deem necessary”.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court recommend appointments to the higher judiciary and transfers of judges. This system has been operational for nearly three decades.
The collegium system itself does not figure in the Constitution. Its legal basis is found in three Supreme Court judgments — usually referred to as the Three Judges Cases — concerning the higher judiciary.
What are the Three Judges Cases?
The S.P. Gupta case (December 30, 1981) or the First Judges Case gave the executive primacy over the judiciary in judicial appointments, while observing that the President’s consultation with the CJI should be “full and effective”.
The Second Judges case (October 6, 1993) gave back primacy to the judiciary. The nine-judge bench held that the word “consultation” in Article 124(2) should be read to mean “concurrence” or agreement of the CJI. “The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter,” the verdict reasoned. It led to the introduction of the initial version of the collegium, where the CJI would consult two of his senior-most judges on appointments, and this “collective” opinion would have primacy.
The Third Judges case in 1998, which was a Presidential reference, laid down that the CJIs should consult with a plurality of the four senior-most Supreme Court judges for judicial appointments and transfers- resulting in the present form of the collegium.
Why is the Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
Why was the NJAC challenged in court?
Multiple petitioners approached the Supreme Court in 2014 challenging the constitutional validity of the NJAC Bill and the 99 th Amendment. But the Court did not admit the pleas, citing that it was “premature” to interrupt an ongoing legislative process.
In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions of what were now laws, saying that both Acts were unconstitutional and invalid. The NJAC never became operational as the then CJI did not find it appropriate to be a part of the commission when it was being challenged in the top court.
It argued that the 99th Amendment took away the “primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or suspended by a “majority of three non-Judge members”. It said that the Amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary was an integral part.
It also contended that the NJAC Act was itself “void” and “ultra vires” the Constitution as it was passed in both Houses of the parliament when Articles 124(2) and 217(1) as originally enacted were in force, and the 99th Amendment had not received Presidential assent.
What was the judgement in the NJAC case?
On October 16, 2015, the five-judge bench ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”. In the judgement running into 1000 pages, former CJI Justice J.S. Khehar penned his majority opinion, with separate concurring opinions written by Justices Madan B. Lokur, Kurian Joseph, and A.K. Goel. Justice J. Chelameswar was the only dissenter on the Bench.
In his dissent, Justice Chelameshwar pointed out that “transparency” was a vital factor in “constitutional governance” and the collegium proceedings were “absolutely opaque” and “inaccessible” to the public and history. Significantly, the Bench also admitted that all was not well with the collegium system of “judges appointing judges”, and invited the government to work on improving the system of judicial appointments.
Bids to reform the Collegium system
The appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure (MoP), which was issued in 1947 and updated in 1999. The court told the Centre in 2015 to come up with a new MoP in order to make the collegium’s proceedings transparent. This exercise, however, resulted in a year-long deadlock between the executive and the judiciary, over some clauses of the MoP. In 2017, the MoP was finalised but was not adopted as the government said it was reconsidering the issue.
Before the collegium system
Prior to the collegium system, judges were appointed under the President’s seal in consultation with other judges if he/she deemed fit. Years of friction between the judiciary and the executive led to the genesis of the collegium system. Court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s further spurred the development of the successor collegium system.