Final Project Submitted

ON

Appointment of Judges to Higher Judiciary with special reference to

NJAC
IN COMPLIANCE TO THE PARTAIL FULFILLMENT OF THE MARKING
SCHEME, FOR TRIMESTER IV OF 2017-18, IN THE SUBJECT OF
CONSTITUTIONAL LAWII

SUBMITTED TO: - SUBMITTED BY:-

Professor Unni Ramachandran Pragya Mishra

Faculty (Constitutional Law) (A041)

BBA LLB (Hons.)

(Second Year)

Received by………………. On date ……………. Time……..

On date ……………... Time……..

1|Page
 TABLE OF CONTENTS

CONTENTS
ACKNOWLEDGEMENT --------------------------------------------------------------------------------- 3
ABBREVIATIONS ------------------------------------------------------------------------------------------ 4
TABLE OF AUTHORITIES ------------------------------------------------------------------------------ 5
PROVISIONS IN THE CONSTITUTION ----------------------------------------------------------- 6
APPOINTMENT OF JUDGES BEFORE 1993 ----------------------------------------------------- 6
APPOINTMENT OF JUDGES AFTER 1993- BEGINNING OF COLLEGIUM
SYSTEM ------------------------------------------------------------------------------------------------------ 7
NJAC- DEMAND FOR TRANSPARENCY --------------------------------------------------------- 8
NJAC- ONLY SOLUTION TO COLLEGIUM SYSTEM? ------------------------------------- 10
CONCLUSION --------------------------------------------------------------------------------------------- 11
BIBLIOGRAPHY ------------------------------------------------------------------------------------------ 13

2|Page
 ACKNOWLEDGEMENT

Apart from the efforts of me, the success of any project depends largely on the encouragement
and guidelines of many others. I take this opportunity to express my gratitude to the people who
have been instrumental in the successful completion of this project.

First of all I would like to thank my college NMIMS KPM SOL for giving me this opportunity to
research on such a wonderful topic. I would also like to thank my Constitutional Law II Prof.
Unni Ramachandran. I can’t say thank you enough for his tremendous support and help. He
helped me a lot in completing this project. Without his encouragement and guidance this project
would not have materialized.

The guidance and support received from all my fellow classmates who contributed directly or
indirectly to this project, was vital for the success of the project. I am grateful for their constant
support and help.

I would also like to thanks my parents who always supported me to complete this project in the
given time frame.

-Pragya Mishra

3|Page
 ABBREVIATIONS

 AIR All India Report

 Art Article
 CJI Chief Justice of India
 HC High Court
 SC Supreme Court
 SCC Supreme Court Cases
 Sec Section

4|Page
 TABLE OF AUTHORITIES

CASES

In re: Special Reference, AIR 1999 SC 1 ------------------------------------------------------------------ 7

P.L. Lakhanpal v. A.N. Ray, AIR 1975 Del. 66 ----------------------------------------------------------- 7
S.P. Gupta vs. Union of India, AIR 1982 SC 149 -------------------------------------------------------- 7
Supreme Court Advocates on Records v. Union of India, AIR 1994 SC 268 ------------------------ 7
Supreme Court Advocates-On-Record Association and Anr. v. Union of India, Writ Petition
(Civil) No. 13 of 2015 being lead matter---------------------------------------------------------------- 9

OTHER AUTHORITIES

Article 34 of the French Constitution --------------------------------------------------------------------- 11

Constitution of India----------------------------------------------------------------------------------------6

5|Page
Judicial appointments, especially in the High Courts and the Supreme Court have always been in
controversy as the appointment process has 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 efficiency of judiciary, different schemes of judicial
appointments have been adopted.

PROVISIONS IN THE CONSTITUTION

Appointment of judges to the Supreme Court of India and the High Courts is provided for in Art.
124(2) and Art. 217(1) of the Constitution respectively. Art 124(2) of the Indian Constitution
provides that the judges 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 state as the President may deem necessary for the purpose and shall hold
office until he attains the age of sixty five years

There has been two different crucial phase in relation to judicial appointments before NJAC.
First: the phase of executive-led appointments (1950-1993) and Second: the collegium mode of
appointment of judges (1993-2014)1.

APPOINTMENT OF JUDGES BEFORE 1993

Before the year 1993, the president’s power to appoint the Supreme Court Judges were purely of
a formal nature, i.e., on the advice of the concerned Minister viz, the Law Minister. The final
power of appointing the SC Judges rested with the executives.

Majority of the judges of the Supreme Court were Judges of the High Courts in India before their
appointment to the Bench of the Supreme Court2. The senior most Judge was appointed as the
Chief Justice of India. It was the norm, and no legal sanction was attached to it. In 1958 the Law
Commission criticized this practice on the ground that a Chief Justice should not only be an able
and experienced judge but also a competent administrator and therefore the office should not be
regulated by mere seniority3. The report was although never implemented. This norm of

1
DD BASU, Commentary on Indian Constitution 8 (9 ed.).
2
The Bangalore Law Journal, Vol. 5, p. 179
3
Law Comm., XIV Rep.,I, 39-40(1958)

6|Page
appointing the senior most judge as the CJI of India remained unspoiled until 1973 when the then
Prime Minister of India Mrs. Indira Gandhi broke this tradition and appointed Justice A.N Ray as
the Chief Justice of India superseding three judges who were senior to him. It was a dictatorial
decision taken by Mrs. Gandhi to ensure that the judiciary favors the actions of the government,
which she did when emergency was imposed. The appointment of new CJI was even challenged
in Delhi High Court through a petition of quo warranto but the court rejected the writ saying that
any writ issued by the court would be futile as Justice Ray could immediately be reappointed by
following the following the process as he was now the senior most judge after the other three had
already resigned4. This convention was further broken in 1977 when Justice M.H Beg
superseded Justice H.R Khanna.

APPOINTMENT OF JUDGES AFTER 1993- BEGINNING OF COLLEGIUM SYSTEM

The provisions of the Constitution dealing with appointment and transfer of judges were
interpreted in S.P. Gupta vs. Union of India5 (First Judges Case). In the said case, it was held by
the Apex Court that the opinion of the Chief Justice does not have primacy and the Union
Government is not bound to act in accordance with the opinion of the constitutional functionaries
as the Executive is accountable and the Judiciary has no accountability.

However, the First Judges Case was overruled by the Second Judges Case6 , by a nine judge
bench whereby it was held that in the event of disagreement in the process of consultation, view
point of judiciary was primal and the executive could appoint judges only if that was in
conformity with the opinion of the Chief Justice. The Collegium system, now about 21 years old,
was not only recognized in the Second Judges Case but also in the Third Judges Case7. Thus the
Collegium system of appointment had become the law of the land and has been followed ever
since.

Under the the 22-year-old court-framed collegium system of appointment and transfer of judges
of high courts and the Supreme Court, the chief justice of the respective high courts and two
other senior-most judges of the court comprise a collegium empowered by virtue of a 1993

4
P.L. Lakhanpal v. A.N. Ray, AIR 1975 Del. 66
5
S.P. Gupta vs. Union of India, AIR 1982 SC 149
6
Supreme Court Advocates on Records v. Union of India, AIR 1994 SC 268
7
In re: Special Reference, AIR 1999 SC 1

7|Page
judgment of the Supreme Court to identify suitable candidates, do due diligence and recommend
for appointment as judges of the court.
The shortlisted candidates are scrutinized by a collegium of five senior-most judges of the apex
court headed by Chief Justice of India before being cleared for appointment. The same collegium
of the apex court identifies serving judges and chief justices of high courts for elevation to the
Supreme Court.

NJAC- DEMAND FOR T RANSPARENCY

The higher judiciary (comprising of the Supreme Court and the High Court) is largely perceived
by the people of India as an institution that champions their fundamental rights, assiduously
guards the basic structure and features of the Indian Constitution and effectively applies brakes
on the arbitrary exercise of power by any public functionary8 and this has increased the
importance of judiciary manifold. Such immense importance also brings in the crucial issue of
judicial accountability. The Constitution lays down the three wings of the government:
legislature, executive and judiciary to carry out the functions of the state. The underlying
principle between them is the separation of powers. As Lord Acton puts it “power tends to
corrupt and absolute power tends to corrupt absolutely”. The judiciary in India enjoys power
more than ever before and is the most powerful judiciary of the world. There is nothing above
Supreme Court in India and hence it breaches the basic concept of check and balances. To avoid
this NJAC is introduced.

In 2014, the Bhartiya Janta Party led NDA government brought in the bill for setting up of a
National Judicial Appointment Commission for regulating the appointment of the judges to the
higher judiciary, i.e. Supreme Court and High Courts in India. The government also brought in a
bill to amend Article 124 of the Constitution in order to provide the NJAC a constitutional status.
Both the bills were overwhelmingly passed by both the Houses of the Parliament without a
single negative vote. The passage of the bills with the approval of members of Parliament
coming from different political parties itself brings out the importance and the urgent need for
setting up of the commission. The bill was further ratified by sixteen states in order to grant the

8
Justice AP Shah et al, Strengthening The Judicial Standards and Accountability Bill, 2010,
02/04/2015.http://righttoinformation.info/wp-content/uploads/2013/10/A-critique-of-the-Bill-authored-byJustice-
AP-Shah-and-Venkatesh-Nayak.pdf

8|Page
NJAC a constitutional status, as required by the Constitution under Article 368 9. Finally the bill
received the assent of the President Mr. Pranab Mukherjee on 31st December 2014, scrapping
the opaque and unconstitutional Collegium system of appointing judges which clearly violated
the basic principal of check and balance of power by all the three organs of the state.

As per the NJAC Act, the commission is to be a six member body, including the Chairman,
which is to be the Chief Justice of India. The body will comprise of the Chief Justice of India,
two senior most judges of the Supreme Court of India, Union Law Minister and two eminent
personalities belonging to schedule caste/tribe or women community. The Act lays down the
procedure for selection of these two eminent persons wherein a body comprising of the Prime
Minister, Leader of Opposition (in case, there is no leader of opposition, then the leader of the
largest opposition party) and the Chief Justice of India shall collectively decide on their
nomination.

The validity of the constitutional amendment act and the NJAC Act were challenged by certain
lawyers, lawyer associations and groups before the Supreme Court of India through Written
Petitions10. Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging
the validity of NJAC on the ground that the challenge was premature as the constitutional
amendment and the NJAC Act had not been notified then. After the fresh challenge in 2015 after
the acts were notified, a three judge bench of the Supreme Court referred the matter to
a Constitution Bench.

In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down
the NJAC Act, 2014 which meant to replace the two-decade old collegium system of judges
appointing judges in the higher judiciary.

9
Source: PTI, 16 states ratify Judicial Appointments Commission Bill, 02/02/2015,
http://timesofindia.indiatimes.com/india/16-states-ratify-Judicial-Appointments-
CommissionBill/articleshow/45664202.cms ( last accessed on 25 th july, 2017)
10
Supreme Court Advocates-On-Record Association and Anr. v. Union of India, Writ Petition (Civil) No. 13 of 2015
being lead matter

9|Page
 NJAC- ONLY SOLUTION TO COLLEGIUM SYSTEM?

The real question which arises for consideration is whether the formation of NJAC really cures
the ailments that the collegium system suffered from? To begin with, the NJAC definitely cures
the earlier allegations of unconstitutionality arising due to the executive's opinion bearing no
weight in comparison to the judiciary. The NJAC consists of three judicial officers and the Union
Law Minister, along with the involvement of several political bodies. The recommendation
would finally be made to the President. Hence the NJAC gives much more primacy to the
executive, rather than the judiciary. Secondly, to some extent it can also be said that the problem
of judicial accountability may also have been solved as the judiciary would now be accountable
to the executive in the matter of its appointments.

However, apart from the above, it doesn't serve much purpose over the collegium system. It is in
no manners cures the lack of transparency. The considerations and procedure of appointment
would still be shrouded in mystery. Along with the criteria of appointment specifically provided
for, in the provisions of the NJAC Act, the words “any other suitable criteria” will continue to
afford sufficient amount of nepotism and favoritism to the members of the NJAC. Also, the
provisions of the NJAC act provide that amongst six members of the NJAC, a minimum majority
of five persons has to agree with the recommendation, in absence of which the recommendation
cannot be made. This majority is not only more than a simple majority (50%) but even more than
a special majority (67%) as contemplated in the Constitution for passing of money bills.
Furthermore, the long procedure of continual debates and discussions ordinarily preceding the
passing of legislation in the country has also not been followed in this case. The passing of the
legislation in such a hurried manner has also been looked upon by many with suspicious eyes
and lack of jurisprudential basis.

Apart from these drawbacks of the collegium system which the NJAC Act fails to overcome, it
has several loopholes and setbacks of its own. The constitutionality of the NJAC Act is a subject
of circumspection. The NJAC Act and the amendment leave the power of judicial appointments,
in the hands of the executive almost in its entirety. Judicial appointments have always been
associated with the Independence of Judiciary, which has time and again recognized to be part of
the basic structure of the Constitution. To give such major primacy to the executive in the

10 | P a g e
appointment process dilutes the independence and can be said to shake the basic structure of the
constitution.

Another perceived lacunae in the formation of the NJAC is the inclusion of “eminent persons”
without any criteria of special knowledge. In other acts, such as the Consumer Protection Act,
1986 the criteria of “eminent persons” is laid down as having some special knowledge,
background and standing. In absence of such a criteria being laid down the committee consisting
of the Prime Minister, the Leader of Opposition and the Chief Justice shall be free to appoint
persons without accountability of merits and other factors which will, in effect, lead to abuse of
the provision. Most importantly, there is no provision for stating the reasons for selection of
either “eminent persons” mentioned in the act. Further there is no provision for stating reasons
for recommendation of candidates. This can lead abuse of powers by the members11.

CONCLUSION

To finish up it might be stated, that the NJAC, might be a venture in front of the collegium
framework regarding legal responsibility, however the reality remains that there is an
exceptionally thin line between Judicial Accountability and dilution of the Independence of the
Judiciary.

Although no other country in the world leaves judicial appointment solely to the judiciary, there
are several methods and balances to protect the Independence of the Judiciary.

In France, a constitutional body of Conseil Superieur de la Magistrature makes recommendations

to the President on the basis of which the appointments are made12. However the body consists
of the President, Minister of Justice, and 16 members out of which only four are prominent
public figures. Out of the remaining twelve, half deal with recommendations of sitting judges
and half deal with recommendations for public prosecutors. The first half is composed of 5
sitting judges and one public prosecutor. Thus the primacy of judiciary in the appointment
procedure can be clearly 12 seen. Similar is the case in the United Kingdom , where for

11
Shambhu Sharan & Gunjan Chhabra, The National Judicial Appointment Commission - A Critique,
http://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Aug/The%20National%20Judicial%20
Appointment%20Commission%20-.pdf ( accessed on 25 July, 2017)
12
Article 34 of the French Constitution

11 | P a g e
appointments to the Supreme Court, the Lord Chancellor has to convene a commission which
consults judges and heads of jurisdiction. On the basis of the recommendation of the
commission, the Lord Chancellor notifies this selection to the Prime Minister.

The Indian NJAC Act can also take inspiration from this. A good way forward could be to
continue with the collegium system, make it more transparent by call for expressions of interest
and publications of reasons including the criteria as well as executive inputs regarding
antecedents etc.

The researcher is fully in agreement with the judgment of SC of removing NJAC as it is

unconstitutional in nature. Many eminent jurists and lawyers are not in the favor of NJAC as it
takes away the independence of Judiciary which is the basic feature of Indian Constitution.

I end my project with the words of Mr. Soli Sorabjee which are in Accordance with my views as
well:

“Please remember no system can be perfect. You cannot ensure independence, you cannot
legislate independence. A judge must be independent even of himself, of his biases, prejudices,
predilections, preconceptions. But the thing is, on the whole, it is a human system, it is not a
perfect system. I think I would rather go with the collegium system, make it broad based, it to be
taken into consideration in appointment of judges rather than scrap it altogether. I would rather
trust the judges than the executive.13”

13
November, 2013, as quoted by “the FIRM”

12 | P a g e
 BIBLIOGRAPHY

BOOKS

 Jain, M.P., "Indian Constitutional Law", (2012)

 Basu, D.D., "Constitution of India"
 Shukla, V.N., “ Constitution of India”, (2015)

STATUTES

 Constitution of India
 Constitution of French

WEBSITES

 www.manupatra.com
 www.lexisnexis.com
 www.scconline.com

13 | P a g e