National Judicial Appointments Commission :

An Analysis

THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014

Ihsan Mahmod Husain

(HB13018)

CONTENTS
A. Table of Cases......................................................................................................1
1. Introduction.........................................................................................................2
2. Composition of National Judicial Appointment Commission.........................2
3. Appointment of Judges: The Collegium System...............................................3
3.1 Evolution of the Collegium System.......................................................3
4. The Defects of the Bill.........................................................................................5
4.1 Veto power..............................................................................................5
4.2 The issue of Two eminent persons......................................................6
4.3 The political aspect.................................................................................6
5. The lone voice of dissent : Justice Chelameswar...............................................7
6. The view of the majority......................................................................................9
7. Conclusion:..........................................................................................................10
7.1 Recommendations:.................................................................................11
8. Bibliography:.......................................................................................................11
A. List of books referred:.............................................................................11
B. List of statutes referred:............................................................................11
C. List of journals referred:..........................................................................11
D. List of websites referred:.........................................................................12
E. List of E-News papers referred:...............................................................12

Table of Cases
S.No
1

Cause Title
S. P. Gupta v. Union of India - 1981( Judges'

Citation
AIR 1982 SC 149

Transfer case)

Supreme Court Advocates-on Record Association

1993 (4) SCC. 441

v. Union of India- 1993

3

In re Special Reference 1 of 1998

1998 (7) SCC 739

Kesavananda Bharati Sripadagalvaru and Ors. v.

(1973) 4 SCC 225

State of Kerala and Anr.

5

Lee v. Bude

L. R. 6 C. P. 576

Supreme Court Advocates-on-Record Association and another v. Union of India

WRIT PETITION (CIVIL) NO. 13 OF 2015

1. Introduction :
National Judicial Appointments Commission (NJAC) was a proposed body which would have been
responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission
was established by amending the Constitution of India through the ninety-ninth constitution amendment
vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014
and by the Rajya Sabha on 14 August 2014.The NJAC would have replaced the collegium system for the
appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the
Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also
passed by the Parliament of India to regulate the functions of the National Judicial Appointments
Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state
legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31
December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April
2015.
On 16 October 2015 the Constitution Bench of Supreme Court by 4;1 Majority upheld the collegium
system and struck down the NJAC as unconstitutional after hearing the petitions filed by several persons
and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the first and lead
petitioner. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th
Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it1
This project aims at analysing the collegium system along with the NJAC Act and also review various
decisions that led to the striking of the THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT,
2014. The independence of judiciary and the theory of separation of powers are the main aspects that are
to be highlighted in this project.

2. Composition of National Judicial Appointment Commission:

As per the amended provisions of the constitution, the Commission would have consisted of the
following six persons:2

1
2

Chief Justice of India (Chairperson,ex officio)

Two other senior judges of the Supreme Court next to the Chief Justice of India -ex officio

The Union Minister of Law and Justice, ex-officio

http://www.livelaw.in/njac-unconstitutional-constitution-bench-41-2/
Sec 3, of THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014
(http://indiacode.nic.in/coiweb/amend/99th.pdf)

Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

Chief Justice of India,

Prime Minister of India, and

Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the
Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one
person would be from theScheduled Castes or Scheduled Tribes or OBC or minority communities or a
woman. The eminent persons shall be nominated for a period of three years and shall not be eligible
for re-nomination.

3. Appointment of Judges: The Collegium System

SC judges are appointed by the President of India, only on the basis of binding recommendations made
by the collegium system a closed group consisting of Chief Justice of India and 4 senior most judges
of the court. The Union Cabinet and Parliament have almost no role to play in the appointments of
judges to Supreme Court or the High Court.
There is no mention of the collegium system in the constitution and it is a purely judicial innovated
system, evolved by the Supreme Court based on its decisions in the three judges cases to secure
judicial Independence and protect itself from unwarranted interference by the government, thus
emphasizing on the doctrine of separation of powers as enshrined in the constitution.

3.1 Evolution of the Collegium System:

The three judges cases evolved the collegium system which is in place at present. The evolution can be
traced in the following cases:

S. P. Gupta v. Union of India - 19813(also known as the Judges' Transfer case)

Supreme Court Advocates-on Record Association vs Union of India4 - 1993

In re Special Reference 1 of 19985

In S.P. Gupta vs. Union of India6 - Judgement in this case created problems for judiciary and
Executive became Powerful. In a decision rendered by a seven-judge Constitution Bench , the
3
4
5
6

AIR 1982 SC 149

1993 (4) SCC. 441
1998 (7) SCC 739
Ibid,3

majority held that consultation does not mean concurrence and ruled further that the concept of
primacy of the Chief Justice of India is not really to be found in the Constitution.
It was held that proposal for appointment to High Court can emanate from any of the four
constitutional functionaries mentioned in Article 2177 and not necessarily from the Chief Justice of
the High Court.
This decision had the effect of unsettling the balance till then obtaining between the executive and
judiciary in the matter of appointment. The balance tilted in favor of the executive. Not only the office
of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the
matter of appointments became less and less. After this judgment, certain appointments were made by
the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs
developed its own backlash.

Year 1993 - The Independence of Indian Judiciary was restored

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-onRecord Association Vs. Union of India8 over-ruled the decision in S.P.Gupta.
The nine-Judge Bench (with majority of seven) not only overruled S.P. Guptas case but also devised
a specific procedure for appointment of Judges of the Supreme Court in the interest of protecting the
integrity and guarding the independence of the judiciary. For the same reason, the primacy of the
Chief Justice of India was held to be essential.
It held that the recommendation in that behalf should be made by the Chief Justice of India in
consultation with his two senior-most colleagues and that such recommendation should normally be
given effect to by the executive. Elaborate reasons were are recorded in support of the proposition
that selection of judges must be in the hands of the judiciary in this country and how the systems
prevailing in other countries are alien to our constitutional system. One of the judges relied upon
7 217. Appointment and conditions of the office of a Judge of a High Court
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the
Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the
chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and
in any other case, until he attains the age of sixty two years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of
a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being
transferred by the President to any other High Court within the territory of India
4
8 Supra,4

Article 50 of the Constitution, which speaks of separation of judiciary and executive and excluded
any executive say in the matter of appointment to safeguard the cherished concept of independence.
It held at the same time that it was open to the executive to ask the Chief Justice of India and his two
colleagues to reconsider the matter, if they have any objection to the name recommended but if, on
such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation,
the executive was bound to make the appointment. In short, the power of appointment passed into the
hands of judiciary and the role of the executive became merely formal.
The 1993 decision was reaffirmed In re Special Reference 1 of 19989 in a unanimous opinion
rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President
under Article 143 of the Constitution.
All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was, however,
some variation. It was held that the recommendation should be made by the Chief Justice of India and
his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most
colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the
proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four
senior-most colleagues are now generally referred to as the Collegium for the purpose of
appointment of Judges to the Supreme Court.

4. The Defects of the Bill:

4.1 Veto power:

The judges may have the largest single body in the composition in the commission(CJI and two seniormost judges) but the problem lies in the procedure where any two members express disagreement on a
candidate, the appointment cannot go through. In any selection, the voice of the judicial members can
be silenced if they cannot carry two of the remaining three members with them , this again is a threat to
Independence of Judiciary. This provision needs strict reconsideration and more deliberation. It will
inevitably lead to impasse, as the country needs judges in the higher judiciary at a very high rate every
year and there will be compromise made to secure consensus leading to the entry of compromised
candidates. This clause nearly wrecks the whole idea of transparency and independency of the
9

Supra,5

judiciary. This particular provision could be missused and it could simply impede the judicial process
due to lack of judges. The veto power could be used mala fide or for some personal gain.

4.2 The issue of Two eminent persons:

The other serious issue involved is regarding the selection of two eminent persons. Due to the
former clause, they hold a determinative position. They can block an appointment by themselves, and
in disagreement between the judges and the Law Minister, their vote will swing the matter. It can be
significantly noted that in selection, the Chief Justice can be outvoted by the Prime Minister and The
Leader of Opposition. It would have been in fitness that no person so appointed in the category of to
whom Chief Justice opposed or at least to provide that there should be consensus. The Chief Justice
has to concur in the selection of the eminent person technically but things may not work out as
conventions.
There is a possibility that the Chief Justice's opinion can be by passed by the Legislature. This again in
violation of the theory of separation of powers. As stated in Kesavananda Bharati Sripadagalvaru
and Ors. v. State of Kerala and Anr.10, the concept of separation of powers and independence of
judiciary are basic structures of the constitution.

4.3 The political aspect:

Pro-government judges are not a new phenomenon. Justice Willis in Lee v Bude11 in Britain observed:
We sit here as the servants of the Queen and Parliament. But then supremacy of the Parliament and
not the constitution is the first principle of British law. In 1973, M Kumaramangalam, Indira Gandhis
Cabinet colleague, defended the appointment of Chief Justice of India AN Ray, who superseded three
senior-most judges, saying in Parliament: We had to take into account what was a judges basic
outlook on life.was it not right to take all these aspects into consideration? Was it not right to think
in terms of more suitable relationship between the court and the government? In appointing a person
as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life and his
politics.
Indira Gandhi herself handpicked Justice MH Beg who was indeed a loyal judge. In the bank
nationalisation case, where 10 judges went against the government, he was the lone dissenter. Similarly
Justice Ray also supported the government with his dissent in the famous privy purses case. Former
Chief Justice Mohammad Hidayatullah observed: appointment of CJI AN Ray was an appointment
10 (1973) 4 SCC 225
11 L. R. 6 C. P. 576

not of creating forward looking judges but judges looking forward to the office of Chief Justice. CJIs
appointment on merit under NJAC would have led to similar appointments.12
The greatest danger to the independence of judiciary does come from the executive. Though most of
our judges have been independent and fearless at times governments did succeed in appointing some
judges of their choice. It is an open secret that several judges have acted in favour of the ruling party
even in the highest courts over the years.
Justice JS Khehar in his judgment has expressed concerns about what he called the culture of
reciprocity. Human beings do live in a web of indebtedness whereby favours generate feelings of
obligation, and the desire to reciprocate. He observed:
Reciprocity and feelings of pay back to the political-executive, would be disastrous to the
independence of the judiciary. With the government as the biggest litigator and cases
coming up against ministers and governmental policies, reciprocity would certainly
impact decisions.

5. The lone voice of dissent : Justice Chelameswar

One of the five-member bench, Justice Jasti Chelameswar, differed from the majority opinion and
wrote a strongly-worded dissent against the collegium system that the judgment effectively restored.
Chelameswar was the lone judge in the Bench to uphold the validity of the NJAC, arguing that to
entirely eliminate the government from the selection process was against the countrys democratic
principles.13
Some aspects of his dissent:
5.1 "Transparency is a vital factor in constitutional governance....Transparency is an aspect of
rationality. The need for transparency is more in the case of appointment process. Proceedings of the
collegium were absolutely opaque and inaccessible both to public and history, barring occasional
leaks."

5.2 Assumption that "primacy of the judiciary" in the appointment of judges is a basic feature of
Constitution "is empirically flawed."

12 http://www.hindustantimes.com/analysis/collegium-system-is-a-lesser-evil-than-the-njac/storyX7pvxvm0XQFhA2W4oYJkxL.html
7
13 http://www.business-standard.com/article/current-affairs/njac-judgment-5-things-justice-jasti-chelameswar-said-in-his-dissent115101700188_1.html

5.3 There were cases where the apex court collegium "retraced its steps" after rejecting
recommendations of a particular name suggested by the High Court collegium giving scope for a great
deal of "speculation".
"There is no accountability in this regard. The records are absolutely beyond the reach of any person
including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such
a state of affairs does not either enhance the credibility of the institution or good for the people of this
country.
5.4 "To hold that it (government) should be totally excluded from the process of appointing judges
would be wholly illogical and inconsistent with the foundations of the theory of democracy and a
doctrinal heresy," he said, adding Attorney General Mukul Rohatgi was right in his submission that
exclusion of the executive branch is destructive of the basic feature of checks and balances - a
fundamental principle in Constitutional theory.
5.5 "For all the above mentioned reasons, I would uphold the Amendment. However, in view of the
majority decision, I do not see any useful purpose in examining the constitutionality of the Act," the
judge said.

In other democracies, political figures control judicial independence with no detriment to judicial
independence. In the United Kingdom, the President and the Deputy President sit on behalf of the
Supreme Court, but the Lord Chancellor must approve any candidate recommended by the
commission.14 In the United States, federal judges are appointed by the President with the consultation
of the Senate.15 In Canada, the Governor-General is empowered by the Constitution with consultation
from the Privy Council.16 In South Africa, the Judicial Service Commission recommends judicial
nominees for the President who, after consultation with the Chief Justice makes the final appointment.
In Germany half the members of the Federal Constitutional Court are elected by the executive and half
by the legislature.17 Lastly in France Appointments are made by the President, he receives proposals
for appointments from Conseil Superieur de la Magistrature.18This shows that none of these countries
feel that the collegium system is essential to have an independent judiciary. They strike a balance
between the legislative, executive and judicial branch during the selection process.
14
15
16
17
18

Schedule 8, Constitutional Reform Act, 2005.

Article II, Section 2,Constitution of the United States of America
Section 4(2), Supreme Court Act (RSC, 1985).
Article 94 (1),Basic Law for the Federal Republic of Germany
Article 65,Constitution of France

6. The view of the majority :

The key holding of the majority are First, judicial appointment is the basic facet of judicial
independence which is a part of the basic structure. Second, judicial primacy during the selection
process is also a part of the basic structure. Third, the collegium allows for executive participation
while maintaining judicial primacy through the collegium. Finally, the NJAC violates the basic
structure by doing away with judicial primacy through its veto provisions. It also held that judicial
independence can only be achieved when there are institutional safeguards to limit outside influence.
This was due to the discomfort the court felt with political appointees charged with the task of
appointing committed judges. There was also the concern that the statute stipulated there would be no
recommendation if any two persons disagreed with the appointment. However, the court did make it
clear that while judicial primacy and judicial independence are vital in the appointment process, the
collegium system is not. Therefore, another system can be placed as long as it complies with the
principles set out in the judgement. The majority also mentioned how the civil society can be included
in the appointment procedure through a non-binding consultation procedure.

The Conclusions of the Majority Judgment as narrated by Justice Kehar in PARA- 254-256 of the
Judgment

Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking
down of Article 124A would automatically lead to the undoing of the amendments made to Articles
124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the
latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the
constitution and the composition of the National Judicial Appointments Commission (NJAC). Its
perusal reveals, that it is composed of the following: (a) the Chief Justice of India, Chairperson, ex
officio; (b) two other senior Judges of Supreme Court, next to the Chief Justice of India
Members, ex officio; (c) the Union Minister in charge of Law and Justice Member, ex officio; (d)
two eminent persons, to be nominated Members. If the inclusion of anyone of the Members of
the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety.
While adjudicating upon the merits of the submissions advanced at the hands of the learned
counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of Article
124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses
9

(a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter
of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices
and Judges, from one High Court to another). The same are accordingly, violative of the principle
of independence of the judiciary. I have independently arrived at the conclusion, that clause (c)
of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the
Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of
Article 124A(1), in my view, impinges upon the principles of independence of the judiciary, as
well as, separation of powers. It has also been concluded by me, that clause (d) of Article
124A(1) which provides for the inclusion of two eminent persons as Members of the NJAC is
ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held
as violative of the basic structure of the Constitution. In the above view of the matter, I am of the
considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The
same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire
Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby
struck down in its entirety, as being ultra vires the provisions of the Constitution.19

7. Conclusion:
It is quite clear from the majority opinion that the concept of separation of power and
independence of judiciary are vital aspects of our Constitution. Even under Article 50 20 there is a
mention of separation of judiciary from the executive. The theme of the constitution has always
tilted towards placing the three organs on the same level. This balance would have been tilted in
favor of Legislature if the NJAC Act or the 99th Constitutional Amendment Act was held
constitutional. The National Judicial Appointment Commission would have ensured transparency
to the appointment of judges , but at what cost has to be looked into. The collegium system
certainly has failed to be transparent and such a system has only been followed in India. It is quite
unique that the collegium system does not let any of the two organs interfere in appointment of
judges . The Constitution has no mention of such a system and this system has been evolved
outside the constitutional framework.
There are pros and cons that have to be weighed and a balance must be brought in . On one hand
19 Supreme Court Advocates-on-Record - Association and another Vs. Union of India ,Justice Kehar in PARA- 254-256 of the
Judgment (http://www.livelaw.in/njac-unconstitutional-constitution-bench-41-2/)
20 Art.50. Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the
public services of the State
10

Judiciary should be independent and on the other hand the collegium system is not the ideal way
for selection of Judges in a Democratic setup like India.Reforming of the existing system could be
the right way to tackle this issue rather than replacing the entire system.
7.1 Recommendations:

Transparency in the system is the first and foremost issue that has to be addressed. This can
simply be done by publishing the process of appointment in any public domain.

A committee could be setup to study the background of the person nominated for
consideration. This committee can contain members of the other two organs, this ensures their
participation.

Eligibility criteria for nomination could be formulated. This can ensure regional balance in
the appointment of judges. Along with this women judges can be ensured a place in the
judiciary.

Public opinion should be considered from time to time . No system can be permanent, it
needs to evolve according to the changing needs.

The Collegium system must come within the scope of RTI.

Public notification of vacancies will enable eligible candidates to apply for the posts and the
screening of such applications can take place . Such a step could be helpful in the backdrop of
criticism over the collegium system promoting favouritism and failing to appoint good
judges. The right to apply for a vacancy would not only ensure equal opportunity to those
eligible for the post but also give a chance to the collegium to choose from amongst the best.

8. Bibliography:
A. List of books referred:

D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA NAGPUR, 14TH

EDN. (2009) .

V.N.SHUKLA, CONSTITUTION OF INDIA , EASTERN BOOK CO, 12TH EDN.

B. List of statutes referred:

The Constitution of India, 1950

Constitutional Reform Act, 2005.

11

Constitution of the United States of America

Supreme Court Act (RSC, 1985).

Basic Law for the Federal Republic of Germany

Constitution of France
C. List of journals referred:

1. All india reporter (air)

2. Supreme court cases (scc)
D. List of websites referred:
1. www.scconline.com
2. www.indiankanoon.org
3. www.legalserviceindia.com
4. www.livelaw.in
5. www.lawlex.org
6. www.business-standard.com
7. www.prsindia.org
8. www.governancenow.com
E. List of E-News Papers referred:
1. www.thehindu.com
2. www.hindustantimes.com
3. www.indianexpress.com

12