The discourse around the independence of judiciary in India pivots around the selection of judges, which hitherto had been the sole bastion of the Judiciary. The system of appointment of judges has been a matter of intense discussion and debate since time immemorial. The evolution of “Collegium system” has its genesis in its three judgments, referred to as the “Three Judges Case.” The First judge’s case[1], rendered the judiciary subservient to the executive in the appointment and transfer of the judges, however both the Second[2] and Third judge’s[3] cases established the primacy of the CJI and judiciary in the matter of all judicial appointments. Though the collegium system solved the problem of executive’s arbitrary appointment of judges, it resulted in unforeseen problems.

No system can be fool-proof, so was the case with the Collegium System of judicial appointment. It has been criticized as,

biased, nepotistic, opaque, and shrouded in secrecy and favoritism interspersed with outright bias, thereby taking away from the concept of rule of law, judicial accountability and democratic functioning. When the executive-controlled system failed, the collegium came in. When collegium is now under shadow, we jumped to the NJAC but where is the guarantee that the new law would not go the same way”? – K.C. Mittal.

A bill by the name of NJAC, was brought into existence after insertion of an article (Article 124A) in the Constitution, comprising the “Chief Justice of India as ex-officio chairperson, two other senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons to be nominated by a committee consisting the Chief Justice of India, the Prime Minister, the Leader of Opposition in the Lok Sabha.” No change comes easy. This bill had its own supporters and naysayers.

NJAC had its own flaws. Under the garb of trying to make the selection process more accountable and transparent, by roping in the Legislature and the Executive, it missed the point is trying to see that this has the potential of undermining the independence of Judiciary. Professor Faizan Mustafa, says, “Appointment of judges is a crucial mechanism to achieve judicial independence. Judges must be independent of executive. The NJAC may not achieve these ideals, NJAC with Law minister as member may be used by the government in appointing judges of its choice, the government should not be allowed to cherry pick judges.”

A grey area was the inclusion of two eminent persons, which opens and can of worms in terms of deciding the criteria for such inclusion. The ambiguous inclusion of such persons without any definition provided in the bill along with the relative subjectivity surrounding this word, perhaps made it the most niggling doubts concerning NJAC and its credibility. The NJAC stood to trample upon the basic structure doctrine and the same time propagates unbridled interference of executive and political parties in the appointment of Judges. Another matter of concern was the possibility of  two politicians (The Prime minister and Leader of Opposition) colluding to make the CJI’s opinion irrelevant, thereby making him play second fiddle to the other functionaries. Advocate Shahid Ali, says “An attempt to interfere in the independence of judiciary through the NJAC is fatal for the democracy and detrimental for fundamental rights guaranteed in the Constitution”.

A glaring lacuna was the provision of a veto power given to two members of the commission. The veto has the potentiality to counterbalance the deserving opinion of the Chief Justice and the other judges, thereby watering down the role of judiciary. The non-judicial members in the NJAC can veto a candidate irrespective of the views of three judicial members, including the Chief Justice of India.[4]With such a veto, there always can remain a possibility of collusion between the remaining members to oppose worthy candidates, for varied reasons: political vendetta, personal grudges, perspective bias or something as basic as lack of true knowledge about the credentials of a potential judge. Members outside of the legal fraternity could be expected to be deficient in the knowledge about the parameters that go into making a creditable and perspicacious judge with rich legal acumen and exemplary erudition.

The NJAC was an extremely centralized body, with no local representation. It becomes rather absurd for someone like a union minister (Law minister) here to decide the candidature for the post of a judge in a court like Guwahati or Kerala. The non-inclusion of the State representatives was conspicuous by its absence. The bill remains didn’t even specify the recommendations put forth by the Commission are binding on the President.

The mandate to select the CJI is accorded to the majority non-judicial members, which can be perilous to the quality and standards of the judiciary in India. Depending on hearsay or irrelevant experiences would have made the entire process “unscientific, irrational, unpractical and unworkable[5]The collegium was tainted “opaque and secretive”. However, a comparison and careful study of these provisions reveal that this system of selection of judges is not less opaque. The possibility to pack judiciary with “friendly” judges in different courts across India stood at an even greater footing given that the non-judicial members can help further interests of those elements who curry favor with them.[6]

 This act left “other criteria other than ability and merit” and “other procedure and conditions for selection and appointment of Supreme Court judges” to be decided by the commission. The legislature, under ordinary circumstances has the duty to clearly lay down criteria and conditions for selection etc. of such high constitutional functionaries, which is now, vested in a six member the Commission, with no first-hand information of the candidates, thus taking away from the independence of the Judiciary and casting aspersions on the hallowed basic structure of the constitution.

The Act nowhere lay down any criterion for the selection of a Chief Justice, which becomes an easy ploy to manipulate and maneuver in favor of vested interests. The words, “if he is considered fit to hold the office” can be interpreted ambiguously which militates against the very purpose of NJAC, which purports to appoint able and meritorious judges to the sacrosanct Judiciary. The bill also doesn’t mandate the commission to make arrangements for ensuring due representation of minorities, women, the scheduled castes and scheduled tribes in the judiciary.[7]

The Supreme Court, in choosing to strike down the proposed constitutional amendments, in the most recent judgment headed by a five-judge constitutional bench,has delineated the following points:(1) Judicial appointments, being an integral facet of judicial independence, are part of the basic structure (2) Judicial primacy in judicial appointments (with executive participation) is also part of the basic structure(3) The collegium allows for Executive participation while maintaining judicial primacy through the Collegium.(4) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions. The new judgment must necessarily, at the same time, mustaddress the issue of transparency in the current collegium system. Ironically, neither the proposed constitutional amendments nor the NJAC Bill deal with the primary criticism of the collegium system, which is the complete lack of transparency in the appointment process. Instead, they merely seek to give the government of the day, a voice and possibly a decisive one, in a non-transparent mechanism of appointment. If the Supreme Court was to strike down the proposed constitutional amendment, to maintain the legitimacy of its decision, it must necessarily in the judgment, lay down in detail, binding guidelines on the process of the decision The new system which shall replace the NJAC must endeavor to give both the members of the Bar and the public at large, a sense of confidence that only the best, most honest, hard-working, and principled judges are holding office in the higher courts of our republic.

This post was authored by Pranvika Bedi and Aditya Rajagopal, students at the West Bengal National University of Juridical Sciences and members of NUJS Constitutional Law Society. 

End Notes:

[1]AIR 1982 SC 149.

[2](1993) 4 SCC 441.

[3]AIR 1999 SC 1.

[4]KRISHNADAS RAJAGOPAL, NJAC Bill Has Not Removed Flaws Of Collegium System,October 6, 2014. (Available at http://www.thehindu.com/news/national/njac-bill-has-not-removed-flaws-of-collegium-system-says-justice-shah/article6473831.ece).

[5]Tarique Anwar,Collegium System Not Perfect, But Superior To NJAC, Says Former CJI. May 13, 2015. Available at http://www.firstpost.com/india/collegium-system-not-perfect-superior-njac-says-former-cji-2242812.html.

[6]Infra note 9.

[7]Indira Jaising, National Judicial Appointments Commission: A Critique. Vol. – XLIX No. 35, August 30, 2014. Available at http://www.epw.in/commentary/national-judicial-appointments-commission.html.


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