Amity Law School

Project
National Judicial
Appointment Commission
(Constitutional Law)
Introduction

Judicial appointments, especially in the High Courts and the Supreme Court have
always been in controversy as the appointment process have great implication on
independency of the judicial system. Independent judiciary is highly needed to sustain
democratic set up of the country. With an aim to secure the independence and high
quality of judiciary, different schemes of judicial appointment have been endorsed.

There have been two different crucial phases in relation to judicial appointments
before National Judicial Appointment Commission (NJAC) came into being. First: the
phase of executive-led appointments (1950-1993) and Second: the Collegium mode of
appointment of judges (1993-2014).
With the NJAC being declared “Unconstitutional and Void” and the Collegium
system operative, the introduction of NJAC has paved the way for a new
Memorandum of Procedure (MoP) to guide future appointments.

The constituent assembly after long debate adopted the system by which the president
would appoint judges, though mandatorily consulting the Chief Justice of India. This
entrustment of the constitutional role to the Chief Justice of India was done with an
intention to create a check on politically motivated selection in appointment.
However, Dr. Ambedkar, speaking in the assembly, carefully stressed that
consultation did not amount to a veto, since that would result in an unrestricted power
being vested in a single person.
What is the collegium system?

It is the system of appointment and transfer of judges that has evolved through
judgments of the Supreme Court, and not by an Act of Parliament or by a provision of
the Constitution. The Supreme Court collegium is headed by the Chief Justice of
India (CJI) and comprises four other senior most judges of the court; and a High
Court collegium is led by its Chief Justice and four other senior most judges of that
court. Names recommended for appointment by a High Court collegium reaches the
government only after approval by the CJI and the Supreme Court collegium. Judges
of the higher judiciary are appointed only through the collegium system — and the
government has a role only after names have been decided by the collegium. The
government’s role is limited to getting an inquiry conducted by the Intelligence
Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme
Court. It can also raise objections and seek clarifications regarding the collegium’s
choices, but if the collegium reiterates the same names, the government is bound,
under Constitution Bench judgments, to appoint them as judges.

What does the Constitution say regarding the appointments of judges?

Judges of the Supreme Court and High Courts are appointed by the President under
Articles 124(2) and 217 of the Constitution.
The President is required to hold consultations with such of the judges of the Supreme
Court and of the High Courts as he may deem necessary.

Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as the President
may deem necessary for the purpose and shall hold office until he attains the age of
sixty-five years. Provided that in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of India shall always be consulted.”

And Article 217: “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.”

Initially, the Chief Justice of India used to initiate the proposal for appointments, very
often in consultation with his senior colleagues and his recommendation was
considered by the President and, if agreed to, the appointment was made. However,
President, as the constitutional head, acts upon the aid and advice of Union Council of
Ministers. Thus, practically, the proposal of the Chief Justice was to be acceptable to
the government. There seemed to be a balance between the executive and the
judiciary on the matter of appointments of judges of the higher judiciary. But since
the Chief Justice of India used to initiate the proposals, the following questions were
raised:
Is Chief Justice of India granted primacy over other judges by the Constitution to
initiate such proposals? The clear answer is no, because it was a tradition and not
constitutional prerogative.
Why proposal for appointments in the High Court cannot emanate from any other
judges than Chief Justice?

So how did the collegium system evolve when the Constitution is silent on it?

The collegium system has its genesis in a series of judgments called “Judges Cases”.
The collegium came into being through interpretations of pertinent constitutional
provisions by the Supreme Court in the Judges Cases.

First Judges Case: In S P Gupta vs. Union of India, 1981, the Supreme Court by a
majority judgment held that the concept of primacy of the Chief Justice of India was
not really to be found in the Constitution. It held that the proposal for appointment to
a High Court can emanate from any of the constitutional functionaries mentioned in
Article 217 and not necessarily from the Chief Justice of the High Court. The
Constitution Bench also held that the term “consultation” used in Articles 124 and
217 was not “concurrence” — meaning that although the President will consult these
functionaries, his decision was not bound to be in concurrence with all of them. The
judgment tilted the balance of power in appointments of judges of High Courts in
favor of the executive. This situation prevailed for the next 12 years.
Second Judges Case: In The Supreme Court Advocates-on-Record Association
vs. Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S
P Gupta and devised a specific procedure called ‘Collegium System’ for the
appointment and transfer of judges in the higher judiciary. Underlining that the top
court must act in “protecting the integrity and guarding the independence of the
judiciary”, the majority verdict accorded primacy to the CJI in matters of appointment
and transfers while also ruling that the term “consultation” would not diminish the
primary role of the CJI in judicial appointments.
“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. Here the word
‘consultation’ would shrink in a mini form. Should the executive have an equal role
and be in divergence of many a proposal, germs of indiscipline would grow in the
judiciary,” it held.
Ushering in the collegium system, the court said that the recommendation should be
made by the CJI in consultation with his two senior most colleagues, and that such
recommendation should normally be given effect to by the executive. It added that
although it was open to the executive to ask the collegium to reconsider the matter if
it had an objection to the name recommended, if, on reconsideration, the collegium
reiterated the recommendation, the executive was bound to make the appointment.

Third Judges Case: In 1998, President K R Narayanan issued a Presidential

Reference to the Supreme Court over the meaning of the term “consultation” under
Article 143 of the Constitution (Advisory Jurisdiction). The question was whether
“consultation” required consultation with a number of judges in forming the CJI’s
opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
In response, the Supreme Court laid down 9 guidelines for the functioning of the
Coram for appointments and transfers — this has come to be the present form of the
collegium, and has been prevalent ever since. This opinion laid down that the
recommendation should be made by the CJI and his four senior most colleagues,
instead of two. It also held that Supreme Court judges who hailed from the High
Court for which the proposed name came, should also be consulted. It was also held
that even if two judges gave an adverse opinion, the CJI should not send the
recommendation to the government. Also the recommendation made by the chief
justice of India without complying with the norms and requirements of the
consultation process are not binding on the government.

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.

What are the problems with the Collegium System, as criticized?

Before 1993, the Executive muzzled with the Judiciary in the matter of judicial
appointments and the Collegium system evolved so that independence and separation
of judiciary from executive can be maintained. For the last two decades, the
appointment of the judges has been an appointment by the judges. But now, it seems
that it is appointment “for the judges”. It appears that the Collegium system of
judicial appointments has resulted in “incompetent, inefficient, ethically compromised
individuals being appointed as judges”.
For instance, in May 2013, the judges of the Punjab and Haryana High Court
protested the elevation of nine advocates as judges of the high court. “They alleged
that the independence and integrity of the judiciary has been put at stake by the
Collegium while giving recommendations because the decisions of the Collegium
seem to have been based on considerations other than merit and integrity of the
candidate”. These judges further wrote that it has now become a matter of practice
and convenience to recommend advocates who are the sons, daughters, relatives and
juniors of former judges and Chief Justices. Nepotism and favoritism is writ large.
The implications of such degradation are that the judges are selected on criteria such
as caste, religion, office affiliations, political considerations and even personal
interests and quid pro quo. The result of this is the poor quality of judges and
judgments. It resulted in “delay in the judgment delivery, lack of clarity and clear
reasoning in judgments, lack of knowledge of even basic principles of law and lack of
ability and willingness to learn, ghost writing of judgments”. The collegium system of
the appointments also raises demands for transparency and openness in the
appointment process because of the secrecy shrouding the appointments. The issue is
NOT who appoints the judges but is how they are appointed. As long as the process is
opaque and appointments are made on personal considerations, there will be problems
of favoritism, nepotism and appointments on criteria other than merit and capability.

What efforts have been made to address these concerns?

The NDA government has tried twice, unsuccessfully both times, to replace the
collegium system with a National Judicial Appointments Commission (NJAC). The
BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah
Commission to opine whether there was need to change the collegium system. The
Commission favored change, and prescribed an NJAC consisting of the CJI and two
senior most judges, the Law Minister, and an eminent person from the public, to be
chosen by the President in consultation with the CJI. The NDA 2 regime had NJAC as
one of its priorities, and the constitutional amendment and NJAC Act were cleared
swiftly.

What is National Judicial Appointment Commission?

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.

Constitution of the National Judicial Appointments Commission

A new article, Article 124A, (which provides for the composition of the NJAC) has
been inserted into the Constitution.

Composition
As per the amended provisions of the constitution, the Commission would have
consisted of the following six persons:
 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
 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 the
Scheduled 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.

Functions of the Commission

As per the amended constitution, the functions of the Commission would have
included the following:
 Recommending persons for appointment as Chief Justice of India, Judges of
the Supreme Court, Chief Justices of High Courts and other Judges of High
Courts.
 Recommending transfer of Chief Justices and other Judges of High Courts
from one High Court to any other High Court.
 Ensuring that the persons recommended are of ability, merit and other criteria
mentioned in the regulations related to the act.
Procedures to be followed by the Commission
The National Judicial Appointments Commission Bill, 2014, had laid down the
following procedures for the selection of the Judges of the higher judiciary.

Procedure for Selection of Supreme Court Judges

 Chief Justice of India
The Commission shall recommend the senior-most judge of the Supreme
Court for appointment as Chief Justice of India. This is provided he/she is
considered fit to hold the office. However, this must be according to the
knowledge one possesses rather than the age.
 Supreme Court Judges
The Commission shall recommend names of persons on the basis of their
ability, merit and other criteria specified in the regulations. The Commission
shall not recommend a person for appointment if any two of its members do
not agree to such recommendation.

Procedure for Selection of High Courts Judges

 Chief Justices of High Courts
The Commission shall recommend a Judge of a High Court to be the Chief
Justice of a High Court on the basis of seniority across High Court judges. The
ability, merit and other criteria of suitability as specified in the regulations
would also be considered.
 Appointment of other High Court Judges
The Commission shall seek nominations from Chief Justice of the concerned
High Court for appointments of High Court Judges or forward a list of such
names to the Chief Justice of the concerned High Courts for his/her views. In
both cases, the Chief Justice of the High Court shall consult two senior most
judges of that High Court and any other judges and advocates as specified in
the regulations. The Commission shall elicit the views of the Governor and
Chief Minister of the state before making recommendations. The Commission
shall not recommend a person for appointment if any two members of the
Commission do not agree to such recommendation.
So, what happened to the NJAC then?

A clutch of petitions were subsequently filed in the Supreme Court, arguing that the
law undermined the independence of the judiciary, and the basic structure of the
Constitution.
On 16th October 2015, a five-judge Constitution Bench headed by the Justice J.S.
Khehar declared it unconstitutional, the constitutional amendment that sought to
create the NJAC, which had envisioned a significant role for the executive in
appointing judges in the higher judiciary. The Bench sealed the fate of the proposed
system with a 4:1 majority verdict that held that judges’ appointments shall continue
to be made by the collegium system in which the CJI will have “the last word”.
“There is no question of accepting an alternative procedure, which does not ensure
primacy of the judiciary in the matter of selection and appointment of judges to the
higher judiciary,” said the majority opinion. Justice J Chelameswar wrote a dissenting
verdict, criticizing the collegium system by holding that “proceedings of the
collegium were absolutely opaque and inaccessible both to public and history, barring
occasional leaks”.

Judgment of the Supreme Court bench

 The Constitution (Ninety-ninth Amendment) Act, 2014 and the National
Judicial Appointments Commission Act, 2014, is declared unconstitutional
and void.
 The system of appointment and transfers of Judges higher judiciary, as
existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called
the “collegium system”), is declared to be operative.
 The clauses provided in the amendment are inadequate to preserve the
primacy of the judiciary, a basic feature of the constitution.
 Inclusion of Law Minister in the commission impinged both on the
independence of the judiciary and the doctrine of separation of powers
between the judiciary and the executive.
 The bench also rejected for reference to a larger Bench, and for
reconsideration of the Second and Third Judges cases.
  To consider introduction of appropriate measures, if any, for an improved
working of the “collegium system”.

Later Developments
On 3 November 2015 the Supreme Court upheld that it is open to bringing greater
transparency in the collegium system within the following existing four parameters,
with opinions from both the parties (petitioners who challenged the NJAC and the
government).
 How the collegium can be made transparent.
 The fixing of the eligibility criteria for a person to be considered suitable for
appointment as a judge.
 A process to receive and deal with complaints against judges without
compromising on judicial independence.
 Debate on whether a separate secretariat is required, and if so, its functioning,
composition and powers.
On 19 November 2015, the Attorney General Mukul Rohatgi informed the Supreme
Court that the central government will not prepare a draft memorandum for judicial
appointments contrary to committed earlier and suggested the same to be done
through a judgment.

How are appointments being made now?

The collegium has been making recommendations for appointments and transfer of
judges. However, the 2015 ruling, in the end, had also paved the way for a new
Memorandum of Procedure (MoP) to guide future appointments so that concerns
regarding lack of eligibility criteria and transparency could be redressed.
The Bench had asked the government to draft a new MoP after consultation with the
CJI.
On 20th March 2017, the Memorandum of Procedure (MoP) for appointment of
judges had finally been cleared after 15 months of tussle between the government and
the collegium over some tricky issues in the MoP, including rejection of appointments
on grounds of national security.
Analysis: Collegium vs Commission

The Supreme Court bench held that the clauses in the amendments are inadequate to
preserve the primacy of the judiciary and the inclusion of the Law Minister in the
NJAC has impinged on both the independence of judiciary and the doctrine of
separation of powers, which are basic features of the constitution. It also asserted that
the better functioning of the judiciary must not be secured at the expense of its
independence.

By striking down the Constitutional amendment, the Supreme Court has sought to
ensure that the executive does not have a say in appointment of the higher judiciary.
In India, the government is the major litigant in crucial cases. In such a situation,
inclusion of law minister representing the executive for appointment and transfer of
judges will results in conflict of interest. The executive may seek reciprocation from
judiciary for appointing their favorites. The public confidence in the judiciary will
also be lost if the major litigant has a role in appointment and transfer of judges.

Under NJAC act, the executive sought to bring two eminent persons into the voting
process, with veto powers. The bench said that this will promote the “spoils system”.
As there is no particular criterion to decide who is an eminent person, the eminent
persons may be unspecialized people without judicial experience. The selection panel
with CJI, Prime Minister and Leader of Opposition as members has given major role
to political class. The veto power of eminent persons will reduce the importance of
Chief Justice of India and Executive in the appointing process. The eminent persons
may exercise the veto without giving any reasons and it will disturb the appointment
process.

Under NJAC, the president cannot even ask the views of anybody (including other
judges and civil society) which was permissible in collegium system.

Article 124C empowered the parliament to change the structure of NJAC through the
ordinary law-making process. This is violation of the theory of separation of powers
and gave the legislative pillar ‘unprecedented powers’.
As pointed out earlier, the collegium system is fraught with its problems. The NJAC
is trying to provide the alternate to the collegium system. The NJAC had been set up
to provide a balance in selection of judges with representations from judiciary,
executive and outside. As pointed out by government, judges cannot be the sole
judges of their own case. They should be accountable. The constitution provides for
stringent conditions for amending the constitution, demands the support of the both
the houses of the parliament and of majority of state legislators. The NJAC bill passed
through the constitutional amendment process and the bench’s rejection to it amounts
to negation the people’s will.

Conclusion

Though the Supreme Court bench has quashed the NJAC act, it has acknowledged the
inherent flaws in the collegium system of appointment and asked the citizens of India
for suggestions to improve the system. However, the court should address the long-
pending issues that had lent credibility to the demand for an NJAC.

A careful inter-institutional equilibrium in the process of judicial appointments was

envisaged by the Constituent Assembly - a multiplicity of authorities across the wings
of government, checking and balancing each other to ensure that the dignity of the
judiciary was maintained and judicial independence remained sacrosanct.

Law Commission of India in its 14th report titled ‘Reform of Judicial Administration’
raised concern on the constitutionally envisaged system of appointment that the role
of executive, especially in the state, was leading to the erosion of the independence of
the judiciary. Probably, this was the beginning of a belief that the judiciary itself
through its representatives, was best placed to decide on its own composition, and
thereby secure judicial independence.