A project on

TOWARDS THE NJAC: DOES IT SOLVE THE

APPOINTMENTS DILEMMA?

Constitutional Governance-II
SUBMITTED BY: SUBMITTED TO:

OM PRAKASH, Roll No. 1122 DR. (PROF.) K.L. BHATIA

Tanmay Jain, Roll No. 1148 FACULTY OF LAW

Semester IV, B.A., LLB (Hons.) NATIONAL LAW UNIVERSITY,

JODHPUR

NATIONAL LAW UNIVERSITY JODHPUR

March 9, 2015
 ACKNOWLEDGEMENT

We owe our gratitude to Prof. K. L. Bhatia for giving us space to decide on the subject of our
project and the content therein. The project also reflects the classroom lecture and discussions
on nuances of various aspects of judicial appointments.

We would also like to thank the Library Staff at National Law University, Jodhpur, for
having been extremely co-operative and ever willing to lend a helping hand to our group
during the course of our research and analysis for the purpose of this term paper.

2
 TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................4

INTRODUCTION .....................................................................................................................6

ORIGINAL CONSTITUTIONAL PROVISION OF APPOINTMENT OF JUDGES .............7

THE PERIOD AROUND 1970s................................................................................................8

THE THREE JUDGES CASE.................................................................................................10

CRITICISM OF COLLEGIUM...............................................................................................13

THE RISING DEMAND FOR A JUDICIAL COMMISSION: .............................................15

PROCEDURE IN SOME OTHER COMMON LAW COUNTRIES .....................................17

THE NJAC: IS IT THE SOLUTION TO THE COLLEGIUM CONUNDRUM? ..................19

CONCLUSION AND SUGGESTIONS..................................................................................23

3
 INDEX OF AUTHORITIES

Cases:

Subhash Sharma v Union of India

I.C. Golak Nath v State of Punjab
 Rustom Cavasjee Cooper vs. Union of India (Bank Nationalisation case)
 H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v.
Union of India and Anr. (Privy Purse case)
 Kesavananda Bharati v State of Kerala
 ADM Jabalpur v Shiv Kant Shukla(Emergency Fundamental Rights judgment)
 S.P. Gupta v Union of India
 Union of India v Sankal Chand Himmatlal Sheth
 Supreme Court Advocates-On-Record Association v Union of India
 In Re: Appointment and Transfer of Judges
 Attorney-General (NSW) v Quin
 Indira Nehru Gandhi v Raj Narain

Articles:

 M P Singh, ‘Securing the Independence of the Judiciary: The Indian Experience’ (2000) 10
Indiana International & Comparative Law Review 245 at 273, 288, 289
 Indira Jaising, National Judicial Appointments Commission: A Critique, Economic and
Political Weekly, Vol. 49, Issue No.35, August 30, 2014.
 Bhagwan D. Dua, A Study in Executive-Judicial Conflict: The Indian Case, Asian Survey,
Vol. 23, No. 4 (Apr. 1983), pp. 463-483, published by University of California Press)
 Arvind P. Datar, The case that saved Indian Democracy, The Hindu, April 24, 2013.
 S.P. Sathe, Appointment of Judges: The Issues, Economic and Political Weekly, Vol. 33, No.
32 (Aug. 8-14, 1998), pp. 2155-2157
 Ashok H. Desai, Assaults on the Judiciary, Economic and Political Weekly, Vol. 12, No. 18
(Apr. 30, 1977), pp. 726-729
 Krishnadas Rajagopal, The collegium controversy, Indian Express, August 24, 2011.
 Prashant Bhushan, The Dinakaran Imbroglio: Appointments and Complaints against Judges,
Economic and Political Weekly, Vol. 44, No. 41/42 (Oct 10-23, 2009), pp. 10-12
 Closed Brotherhood, Economic and Political Weekly, Vol. 44, No. 12 (March 21-27, 2009)

4
 Krishnadas Rajagopal, NJAC Bill has not removed flaws of collegium system, says Justice
Shah, The Hindu, October 6, 2014.
 Kaleeswaram Raj, Justice in Judicial Appointments, The Hindu, January 18, 2014.
 Soli J. Sorabjee, Role of the Judiciary: Boon or Bane?, India International Centre Quarterly,
Vol. 38, No. ¾, The Golden Thread: Essays in Honour of C.D. Deshmukh (WINTER 2011-
SPRING 2012)
 J. Venkatesan, Collegium System not working properly: jurists, The Hindu, December 13,
2009
 Ajit Prakash Shah, Who should judge the judges, The Hindu, The Hindu, January 26, 2012.
 Kaleeswaram Raj, Federalism in Judicial Appointments, The Hindu, Sept 17, 2014.
 Watershed in Judicial History, The Hindu, January 8, 2015.
 Sidharth Sharma, What an independent judiciary is all about, The Hindu, Oct 3 2014 –
Business Line
 Gargi Parsai and B. Muralidhar Reddy, NJAC Bill now goes to State Legislatures, The Hindu,
Aug 15, 2014

5
 INTRODUCTION

The President of India granted his assent to the 121st Constitutional Amendment Bill for
setting up the National Judicial Appointments Commission (NJAC) on the 31st of December,
2014. On the same date The National Judicial Appointments Commission Act, 2014 (Act no.
40 of 2014) received the assent of the President. The demand of setting up a judicial
commission for the appointments of judges to the High Courts and the Supreme Court had
long been overdue.1

Since 1950, judges have been appointed by the government in “consultation” with the Chief
Justice of India (CJI). For the first two decades, there was a near consensus between the
government of the day and the CJI.2 For almost three decades since the coming into force of
the Constitution, the appointment of judges was made by the president on the advice of the
council of ministers and the process of consultation with other judges took place behind
doors. A practice had developed over the last several decades according to which the Chief
Justice of India initiated the proposal, very often in consultation with his senior colleagues
and his recommendation was considered by the President and, if agreed to, the appointment
was made. By and large, this was the position till 1981.3 However from the early 1970s only,
a gradual friction between executive and judiciary had begun to arise.

This article looks into the journey towards setting up of a national level judicial commission
for appointment of judges in the higher judiciary since independence. Considering the
dilemma of the judicial appointments, the NJAC was the need of the hour, nevertheless some
provisions raises serious concerns which have also been discussed. The matter regarding
constitutional validity of both the Acts is presently sub-judice before the Supreme Court.

1
See M P Singh, ‘Securing the Independence of the Judiciary: The Indian Experience’ (2000) 10 Indiana
International & Comparative Law Review 245 at 273, 288, 289 (Two Bills, one in March 1982, and another in
May 1990, were introduced in Parliament to amend Articles 124(2) and 217(l), which provided for the
appointment of Supreme Court and High Court judges on the recommendation of a judicial commission. These
amendments were not pursued and passed.) Also see, Law Commission of India Reports No. 14, 80, 121 and
214; Report of National Commission to Review the Working of the Constitution (NCRWC), submitted on 31
March, 2002; Constitution 6th amendment bill (bill no 93 of 1990); Subhash Sharma v Union of India AIR 1991
SC 631
2
Indira Jaising, National Judicial Appointments Commission: A Critique, Economic and Political Weekly, Vol.
49, Issue No.35, August 30, 2014; See Arun Jaitley Rajya Sabha Speech on Judicial Appointments Commission
Bill, 2013 available on <http://www.bjp.org/en/media-resources/press-releases/speech-by-shri-arun-jaitley-in-
rajya-sabha-on-the-judicial-appointments-commission-bill-2013> last accessed on February 19, 2015
3
NCRWC, A consultation paper on Superior Judiciary, available on <
http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm> last accessed on February 17, 2015

6
 ORIGINAL CONSTITUTIONAL PROVISION OF APPOINTMENT OF JUDGES

The Constitution of India provided the mechanism for appointment of Judges to Supreme
Court under Art. 124(2) and to the High Courts under Art. 217(1) and transfer of judges
under Art. 222(1).

Art. 124(2) of the Constitution:

“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…”

Art. 217(1) of the Constitution:

“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…”

Art. 222(1) of the Constitution:

“The President may, after consultation with the Chief Justice of India, transfer a
Judge from one High Court to any other High Court.”

Thus, Article 124 vests the power of appointment of the Chief Justice of India and the Judges
of the Supreme Court in the President. Also, the provision speaks of ‘after’ consultation and
not ‘in’ consultation. On a plain reading of the provision, the power of appointment vests in
the President. The President, of course, means the Executive i.e. The President acting on the
advice of Council of Ministers.4 The expression is not “concurrence”. Similar is the
provision in the case of High Court Appointments. The Constituent Assembly debates show
that when it was suggested by some of the members that the expression should be
‘concurrence’ and not ‘consultation’, it was not agreed to.5 The transfer of judges also
requires that the President consults (and not concurs) with the Chief Justice of India and then
only make any transfers.

4
NCRWC final report, ch. 7, The Judiciary, < http://lawmin.nic.in/ncrwc/finalreport/v1ch7.htm> last accessed
on February 24, 2015
5
Constituent Assembly debates Vol.8 p.258, See B. Shiva Rao, The Framing of India’s Constitution, Universal
Law Publishing, Vol. 4, p. 196

7
 THE PERIOD AROUND 1970s

The tussle between executive and judiciary began to be very clear after three successive
adverse rulings6 against the government. The Indira Gandhi government brought in
successive constitutional amendments which served to confer the Parliament absolute power
under Art. 368 even to the extent of abolishing fundamental rights. The Kesavananda Bharati
case7 was a culmination of the serious conflict between the judiciary and the government,8
and the judgment was a blow to the Indira Gandhi government. She retaliated by appointing
Justice Ray, who had given opinion in favour of the unlimited power of constitutional
amendment by the Parliament as Chief Justice superseding the three senior judges who had
subscribed to the basic structure doctrine and on his retirement Beg, J, was appointed as
Chief Justice ignoring Khanna, J. who was senior to him.9

The convention of appointing judges on the basis of seniority was not followed at all during
the ’70s. The government issued orders for the transfer of judges from one high court to
another and terminated the services of some judges who had been appointed for two years as
additional judges as their judgments were against the government. It had always been the
practice that a judge is initially appointed as additional judge for a period of two years.
Invariably such a judge is appointed as a permanent judge as soon as a clear vacancy arises.
During the emergency of 1975, for the first time some additional judges were not continued
after the period of two years was over.10 Supersession and transfers were the two swords used
by the then government for disciplining judges.11 Against this backdrop some lawyers filed a

6
See I.C. Golak Nath v State of Punjab 1967 SCR (2) 762, Bank Nationalisation Case 1970 SCR (3) 530 and
Privy Purses judgment 1971 SCR (3) 9; Indira Gandhi after winning more than two-third seats in the 1971 Lok
Sabha elections amended the Constitution to restore to Parliament the unlimited power of constitutional
amendment which the Golak Nath decision had taken away from it; Bhagwan D. Dua, A Study in Executive-
Judicial Conflict: The Indian Case, Asian Survey, Vol. 23, No. 4 (Apr. 1983), pp. 463-483, published by
University of California Press)
7
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
8
Arvind P. Datar, The case that saved Indian Democracy, The Hindu, April 24, 2013 <
http://www.thehindu.com/todays-paper/tp-opinion/the-case-that-saved-indian-democracy/article4648788.ece>
9
Justice Khanna had given a dissenting judgment in the famous Fundamental Rights case, .ADM Jabalpur v
Shiv Kant Shukla AIR 1976 SC 1207
10
S.P.Sathe, Appointment of Judges: The Issues, Economic and Political Weekly, Vol. 33, No. 32 (Aug. 8-14,
1998), pp. 2155-2157
11
Ibid; For supersessions, transfers, non-confirmation of additional judges into permanent judges under Art.
224, departure from established procedures for appointment of judges, and their impact, in and around the
period of emergency, see Ashok H. Desai, Assaults on the Judiciary, Economic and Political Weekly, Vol. 12,
No. 18 (Apr. 30, 1977), pp. 726-729; Also see Bhagwan D. Dua, supra note 6

8
public interest litigation in the Supreme Court seeking the interpretation of the constitutional
provisions regarding appointment of judges.12

12
S.P. Sathe, Ibid

9
 THE THREE JUDGES CASE

In 1981, the matter concerning appointment of High Court judges and Supreme Court judges
came before the Supreme Court in S.P. Gupta v Union of India.13 The main question before
the Court was that where there is difference of opinion amongst the constitutional
functionaries who are consulted, whose opinion should be accepted? The majority took the
view that “the power of appointment resides solely and exclusively in the Central
Government. It is not an unfettered power in the sense that the Central Government cannot
act arbitrarily without consulting the constitutional functionaries specified in the two Articles
(124 and 217) but it can act only after consulting them…” The question regarding what
constitutes ‘consultation’ within the meaning of Art. 124(2) and 217(1) had already been
settled in Union of India v Sankal Chand Himmatlal Sheth14 and the Supreme Court
unanimously agreed to the literal meaning determined in that case. The Court clearly
observed “…that it is only consultation which is provided by way of fetter upon the power of
appointment vested in the Central Government and consultation cannot be equated with
concurrence.” The Court observed: “If primacy were to be given to the opinion of Chief
Justice of India, it would, in effect and substance, amount to concurrence…”

Thus subsequently, 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.15 The view of the Court made consultation with the Chief Justices inconsequential
in the matter of appointment of High Court Judges.16

The judgment in Gupta came to be criticised in Subhash Sharma v Union of India17. The
Bench emphasised that an independent, non-political judiciary was crucial to sustain the
democratic political system adopted in India and opined that primacy be given to the views of
the Chief Justice in the matter of selection of High Court Judges. It suggested reconsideration
by a larger Bench of this aspect of the process of appointment of Judges.

13
AIR 1982 SC 149
14
AIR 1977 SC 2328
15
Supra note 3
16
MP Jain, Indian Constitutional Law, Lexis Nexis, 7th Ed., p. 382
17
AIR 1991 SC 631

10
In Supreme Court Advocates-On-Record Association v Union of India,18 the majority (seven)
of the nine judge bench held that the advice tendered by the council of ministers to the
President regarding the appointment of the judges must be based on the consultation it has
held with the persons mentioned in Articles 124(2) and 217(1). However, unlike the previous
view held in Gupta, the majority held that the opinion of the Chief Justice of India must have
a primacy over all other opinions.19 Accordingly, the Court ruled that “in the choice of a
candidate suitable for appointment, the opinion of the Chief Justice of India should have the
greatest weight as he is best suited to know the worth of the appointee; the selection should
be made as a result of a participatory consultative process in which the Executive has the
power to act as a mere check on the exercise of power by the Chief Justice of India, to
achieve the constitutional purpose. Thus the executive element in the appointment process is
reduced to the minimum and any political influence is eliminated.”20

In 1998, President K.R. Narayanan issued a presidential reference to the Supreme Court 21 as
to what the term "consultation" meant in Articles 124, 217 and 222 of the Constitution. The
question was if the term "consultation" requires consultation with a number of judges in
forming the CJI's opinion, or whether the sole opinion of the CJI constituted the meaning of
the articles.22 In reply, the Supreme Court laid down nine guidelines for the functioning of the
coram for appointments/transfers enlarging the composition of the collegium. The guidelines
included inter alia the term consultation requires consultation with a plurality of judges in the
formation of the opinion of the CJI. Also, The CJI can only make a recommendation to
appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a
High Court in consultation with the four senior-most judges of the Supreme Court. As far as
the High Courts are concerned, the recommendation must be made in consultation with the
two senior-most judges of the Supreme Court. This came to be the present form of the
collegium.23

The Supreme Court in the Supreme Court Advocates-on-Records Association v. Union of

India24, (the second judges case) and in re Presidential reference25, in effect emphasized

18
AIR 1994 SC 268
19
Ibid; S.P. Sathe, supra note 10
20
AIR 1994 SC, at 430
21
In Re: Presidential Reference AIR 1999 SC 1
22
ibid; See Krishnadas Rajagopal, The collegium controversy, Aug 24, 2011,
<http://archive.indianexpress.com/news/the-collegium-controversy/836029/0> last accessed on February 20,
2015
23
Ibid
24
AIR 1994 SC 268

11
upon "integrated 'participatory consultative process' for selecting the best and most suitable
persons available for appointment" in which "all the constitutional functionaries must
perform this duty collectively with a view primarily to reach an agreed decision, sub-serving
the constitutional purpose, so that the occasion of primacy does not arise" in the matter of
appointment of judges.26 However, in case of disagreement between the President and the
Chief Justice of India, the opinion of the latter must prevail.27

Thus, a collegium system was formed for the appointment of judges with the Chief Justice of
India having the greatest weight in appointments and the role of executive being reduced to
little. However, the collegium system has always been controversial with regard to, inter alia,
the quality of appointments and the process undertaken.

25
AIR 1999 SC 1
26
Supra note 4
27
Ibid

12
 CRITICISM OF COLLEGIUM

When the power of appointment was with the government, judges were often being selected
on partisan political considerations. After the judiciary took it over, by creatively
reinterpreting the words, “appointed by the President in consultation with the Chief Justice of
India”, to mean, “appointment by the collegium of judges in consultation with the President”,
judges are being appointed sometimes on nepotistic considerations.28

The main allegation against the collegium system is that there is an absolute lack of
transparency. Members of the Supreme Court collegium have also been accused of exploiting
their power to appoint their close relatives or particular lawyers as High Court judges.
Similarly, personal animosity has resulted in the delay or denial of appointments to the
Supreme Court.29 No criterion or system was devised by the Supreme Court for the
appointment of judges under the collegium system. Thus, the opaque nature of the system
tends to corrupt the entire judicial institution of the nation.

There are systemic errors in the Collegium system such as30:

* The administrative burden of appointing and transferring judges without a separate

secretariat or intelligence-gathering mechanism dedicated to collection of and checking
personal and professional backgrounds of prospective appointees;

* A closed-door affair without a formal and transparent system;

* The limitation of the collegium's field of choice to the senior-most judges from the High
Court for appointments to the Supreme Court, overlooking several talented junior judges and
advocates.

There is an element of self-perpetuation when only judges select future judges. Neither the
legislature nor the executive are meant to be self-perpetuating. Both are created by a
legitimate external agency – the people in the case of legislature and the legislature in the
case of executive – and they derive their legitimacy as much from their process of creation as

28
Prashant Bhushan, The Dinakaran Imbroglio: Appointments and Complaints against Judges, Economic and
Political Weekly, Vol. 44, No. 41/42 (Oct 10-23, 2009), pp. 10-12
29
Arvind P. Datar, A fatally flawed commission, The Hindu, August 17, 2014, <
http://www.thehindu.com/opinion/op-ed/national-judicial-appointments-commission-a-fatally-flawed-
commission/article6326265.ece> last accessed on February 22, 2015
30
Krishnadas Rajagopal, Supra note 22

13
from their constitutional role. This method of creation underlines the interrelationship of the
organs of the State. The judiciary cannot be an exception to this process.31

Views of Law Commission: The Law Commission has described the second judge case as a
judgment which travels far beyond the order of reference. 32 Criticising the second and third
judges’ case, the Law Commission has said that “the Supreme Court read into the
Constitution a power to appoint judges that was not conferred upon it by the text or the
context.”33 The Law Commission of India chairman A.P. Shah, J. criticised the collegium
system and remarked that since 1993, the Supreme Court has been “packed” with Chief
Justices of High Courts elevated by the collegium merely due to their seniority, and without
looking at merit and other objective qualifications. This, he said, has led to a “decline in the
standard of judges.”34

Views of Jurists: In selecting judges for the constitutional courts, the collegium system has
exposed itself. In the words of Justice Krishna Iyer: “There is no structure to hear the public
in the process of selection. No principle is laid down, no investigation is made, and a sort of
anarchy prevails.”35

Eminent lawyer Solo Sorabjee attributes the increasing number of Special Leave Petitions
(SLPs) to the Supreme Court to the shoddy quality of judgments caused by the quality of the
appointments made in the High Courts.36 He writes: “It is a notorious fact that in some cases
integrity and ability which should be the criteria for appointment have taken a back seat and
are subordinated to political and other extraneous considerations. Judgeships are not
bounties for political services. In some High Courts, lawyers who have been appointed
judges had hardly any practice or experience in the High Court and their incomes did not
cross the exemption limit under the Income Tax Act. The tragic part is not the mediocre are

31
Closed Brotherhood, Economic and Political Weekly, Vol. 44, No. 12 (March 21-27, 2009), p.6
32
214th Report of the Law Commission of India
33
Ibid
34
Krishnadas Rajagopal, NJAC Bill has not removed flaws of collegium system, says Justice Shah, The Hindu,
Oct 6 2014, < http://www.thehindu.com/news/national/njac-bill-has-not-removed-flaws-of-collegium-system-
says-justice-shah/article6473831.ece>
35
Kaleeswaram Raj, Justice in Judicial Appointments, The Hindu, Jan 18, 2014 <
http://www.thehindu.com/opinion/lead/justice-in-judicial-appointments/article5587974.ece> last accessed on
February 24, 2015
36
Soli J. Sorabjee, Role of the Judiciary: Boon or Bane?, India International Centre Quarterly, Vol. 38, No. ¾,
The Golden Thread: Essays in Honour of C.D. Deshmukh (WINTER 2011- SPRING 2012) pp. 126-143

14
appointed, but that the meritorious are excluded because the proposed appointee happens to
be the son-in-law or the uncle or the nephew of someone who is a critic of the government.”37

Expressing displeasure over the way collegium system is functioning, senior lawyer Fali S.
Nariman said he regretted winning the Second Judges Case, through which the Supreme
Court took upon itself the task of clearing appointments to the higher judiciary.38

Thus in light of the drawbacks of the collegium system, demands were being made from all
quarters for setting up of an independent judicial commission for the appointment of judges.
Even before the collegium system, considering the political interventions in appointments of
judges, there were suggestions and demands for the setting up of a judicial commission for
appointment of judges.

THE RISING DEMAND FOR A JUDICIAL COMMISSION:

A high-powered judicial commission is the need of the hour. The Law Commission in its 14 th
report delivered in 1958 had expressed its indignation at the way judicial appointments were
made.39 Law Commission in its 80th Report in 1977 proposed constitution of a high level
panel (a consultative panel, called “Judges Appointment Commission”) consisting of persons
known for their integrity, independence and judicial background to ensure dispassionate
scrutiny and to eliminate extraneous considerations in the matter of these appointments (the
panel was to consist of Chief Justice of India, Minister for Law and Justice and three persons
each of whom has been the Chief Justice or a Judge of the Supreme Court) but it dropped the
proposal in view of the opposition by most of the High Courts. In its 121st report issued in
1987, the Law Commission has advocated the setting up of a Judicial Commission. In 1987,
after the case of S.P. Gupta the executive came to wield overriding powers in the matters of
selection and appointment of judges. The Commission was unhappy with the situation
prevailing at the time. The 67th Constitutional Amendment Bill, 1990 proposed the creation
of a national judicial commission composed of serving judges headed by the CJI. The Second
Administrative Reforms Commission has also proposed the setting up of a national judicial
council to make recommendations on appointment of judges to higher judiciary, their
transfers and postings and removal in case of misconduct.40 The 214th Law Commission
Report (2008) recommended restoration of the original constitutional procedure to be

37
Ibid
38
J. Venkatesan, Collegium System not working properly: jurists, The Hindu, Dec 13, 2009
39
S.P.Sathe, Supra note 10; See 14th Law Commission Report
40
See 4th Report of 2nd Administrative Reforms Commission, Ethics in Governance

15
followed in wake of the Supreme Court’s decisions in the Judges Appointments cases. The
collegium system did not work the way it was expected to. Even Verma, J., who wrote the
majority opinion in the Second Judges Case, said the collegium system was not working
properly and suggested the immediate setting up of a national commission empowered to
appoint judges to High Courts and the Supreme Court.41

41
Supra note 38

16
 PROCEDURE IN SOME OTHER COMMON LAW COUNTRIES

In all other countries either the executive is the sole authority to appoint judges or the
executive appoints in consultation with the Chief Justice of the country. The Indian
Constitution has followed the latter method. However the second and third judges’ case has
completely eliminated and excluded the executive.

United States of America: The State Judges are elected in the U.S. When they are not elected
their appointment is subject to legislative concurrence. In the Supreme Court, it is the
President who nominates the judges, but the nomination has to be confirmed by the Senate. 42
Thus, the process is entirely political.

Canada: The Governor General makes the appointment of judges on the advice of the federal
cabinet. Appointments to the provincial court in each province are made by the Lieutenant
Governor of the province on the recommendation of the provincial government.

Australia: In Australia, Judges are appointed by the executive government, without

intervention by the existing judiciary.43

New Zealand: The Chief Justice is appointed on the recommendations of the Prime Minister
by the President. The Prime Minister in turn consults the Attorney General; the A.G.
informally consults the President of Court of Appeal and other judges. As for the High Court
Judges, Chief Justice recommends after consulting other Judges and gives the list to the A.G.
for scrutiny. A.G. scrutinizes the list, consults New Zealand Law Society and then
candidate’s consent is sought. Thereafter, the cabinet finally recommends the names to the
Governor General who issues the appointment letter.44

Israel: The nine-member Commission that selects judges for all levels of courts in Israel
consists of the President of the Supreme Court, two other Supreme Court judges, the Minister
of Justice (Attorney General), another Cabinet Minister, two members of the Legislature (one
of whom has traditionally been selected from the opposite ranks) and two representatives of
the Israeli Bar.45

42
Supra note 32
43
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 33; 93 ALR 1 at 23; 64 ALJR 327 at 327, 340.
44
Supra note 32
45
Ajit Prakash Shah, Who should judge the judges, The Hindu, The Hindu, January 26, 2012, <
http://www.thehindu.com/opinion/op-ed/who-should-judge-the-judges/article2832090.ece> last accessed on
February 26, 2015

17
United Kingdom: In the U.K., the judges in the higher judiciary are appointed on the basis of
recommendations made by the independent Judicial Appointments Commission (JAC) as per
the Constitutional Reforms Act, 2005. Regional representation in appointments is ensured.
There is no predominance either of the judiciary or of the executive. There is no ‘collegium
syndrome’, much less any ‘kin syndrome’. Nor is there any political highhandedness. 46

The Constitutional Reforms Act (CRA), 2005 in the U.K. was substantially altered by way of
the Amendment in 2013. At present, there is a 15-member Commission doing the job of
selection of judges to the higher judiciary and tribunals. Selection commences with an open
vacancy notification. It is again a paradox that despite the promise for equality of opportunity
in public employment guaranteed under Articles 14 and 16 of the Constitution, an eligible
person in India cannot apply for judgeship in higher judiciary. Nor is there any system of
open nomination. The notification is followed by a series of statutory consultations. The
Appointment Commission has a participative, representative and a democratic character. 47

However, the JAC on its own cannot select justices for the U.K. Supreme Court. The Lord
Chancellor after completing due formalities recommends the name of the candidate to the
Prime Minister who in turn should advice the Queen to issue formal orders of appointment.48

Thus, India is the only exceptional case where the judiciary selects its own judges and there is
no involvement of the executive or any established commission in the process of the
appointments in the higher judiciary.

46
Supra note 35
47
Ibid
48
Ibid

18
 THE NJAC: IS IT THE SOLUTION TO THE COLLEGIUM CONUNDRUM?

The Judicial Appointments Commission Bill 2013 was brought by the UPA government but
it lapsed with the dissolution of the 15th Lok Sabha. The present NDA government has set up
the National Judicial Appointments Commission by making amendments in the Constitution.
However, both the Constitution (99th Amendment) Act as well as the NJAC Act raises some
serious concerns about, inter alia, the functioning of the commission, constitutional validity
and its practicability.

There was very little debate on the National Judicial Appointments Commission Bill and the
Constitutional Amendment Bill in both the Houses of Parliament. The Constitution (99th
Amendment) Bill, 2014 and the National Judicial Appointment Commission Act, 2014 are
both seriously flawed and contrary to elementary principles of constitutional law. Both laws
will also be wholly unworkable in practice. The net result is that a flawed but workable
collegium system will now be replaced by an even more flawed and wholly unworkable
Commission system.49

The Commission shall be a six member body50 comprising of the Chief Justice of India, two
other senior judges of the Supreme Court next to the Chief Justice, Law Minister, and two
eminent persons to be nominated by the committee consisting of the Prime Minister, the
Chief Justice of India, and the Leader of opposition of Lok Sabha (if there is no leader of
opposition, then leader of the single largest party in Lok Sabha). One of the eminent persons
nominated shall be amongst the persons belonging to SCs, STs, OBCs, Minorities or Women.

Section 5 and 6 of the NJAC Act provides for procedure for selection of judge of Supreme
Court and High Courts respectively. The recommendation shall be made by the commission
for the appointment of judges and the Chief Justice.51 The proviso to section 5 says that the
commission shall not recommend a person to for appointment if two members of the
commission do not agree for such recommendation. Section 5(3) provides that “The
Commission may, by regulations, specify such other procedure and conditions for selection
and appointment of a Judge of the Supreme Court as it may consider necessary”.

The 99th amendment to the Constitution inserts three new Articles — 124A, 124B, and 124C
— and also amends several other Articles under the ostensible objective of providing a

49
Supra note 29
50
Sec. 124A (1) of the Constitution (99th Amendment) Act, 2014
51
See Section 5 and 6 of NJAC Act, 2014

19
“meaningful role to the judiciary, executive and eminent persons to present their viewpoints
and make the participants accountable while also introducing transparency in the selection.”52

There are several contentions which emphasises on the futility of the Judicial Commission:

Practically Unviable: The constitutional amendments will be unworkable in practice. What

happens if there is a deadlock? Is it necessary that all the six members must be present at
every meeting? Is there any quorum? What happens if one member absents himself? What
happens if the veto power is misused to appoint someone undesirable? How are the
regulations to be framed?53 These questions have not been dealt in the Act.

Constitutionally Invalid: While Article 124(3) of the Constitution prescribes the minimum
requirement of a person to be eligible to be appointed as a Supreme Court judge, Section 5(2)
of the NJAC Act, 2014 can now prescribe “any other criteria of suitability as may be
prescribed by the regulations.” Similarly, additional criteria not mentioned in the Constitution
can be added for High Court judges. We now have an absurd situation where the eligibility of
Supreme Court and High Court judges will be determined not just by the Constitution but by
“regulations” of the Commission.54

Potential of Creating deadlocks: For the appointment of High Court judges, the NJAC Act,
2014 also requires the views of the Governor and Chief Minister to be given in writing and
“as prescribed by the regulations.” But the Act is silent as to what happens if the Governor or
Chief Minister or both object. It is now mandatory that eminent advocates are consulted
while appointing High Court judges. Who are the “eminent advocates” has not been
defined.55

Arbitrary Procedure: The NJAC would perpetuate many of the basic deficits and perils of
the collegium in a different manner. A secret process without any benchmark that does not
even accept the need for assessment of inter se merit would be constitutionally legitimised.
No discussions, no notifications, no applications, no interviews, no consultations and

52
Statement of Objects and Reasons to The Constitution (One Hundred And Twenty-First
Amendment) Bill, 2014
53
Supra note 29
54
Ibid
55
Ibid

20
ultimately no democratisation either in the process or in the institution. Openness and
transparency are the sine qua non for any fair method of selection.56

Vulnerable to Political Manipulation: The fear is that the NJAC may encourage High Court
judges to give pro-government rulings with the object of gaining eventual promotion to the
Supreme Court. This problem was dealt with by the Venkatachaliah Committee, endorsed by
the Vajpayee government, which suggested a panel of three judges, the Union Minister and
only one ‘eminent person’, thus reducing the scope for executive interference. Having a
relook at this report might have been of value. But the BJP has ignored it and instead
demanded more say in the NJAC; the Opposition did not seem to have any complaints about
the procedure either.57

Misuse of Veto Power: The NJAC cannot recommend a person for appointment if any two of
its members do not agree to it. This veto power can be misused to embarrass the judiciary, as
a candidate recommended by the CJI and the other two judges on the Commission can be
rejected by the rest of the Commission’s members. Thus, the new system takes away the
primacy of the judiciary in matters of appointment and that, in turn, will compromise the
independence of the judiciary.58

Question over Involvement of Law Minister: Eminent lawyer Ram Jethmalani contended
that there was no rationale in the Law Minister being on the commission as he could be
somebody who might have to practise before the judiciary later.59

No Definition of Eminent Persons, Merit etc.: There is no definition of who is an eminent

person. This lacuna can be subject to gross manipulation by the political class for
appointment of judges. The Act amending section 124(B) of the Constitution states, among
other things that one of the criteria for being recommended as a judge is that a person must be
of “ability and integrity”. There is no system in place for judging ability and the bill does not

56
Kaleeswaram Raj, Federalism in Judicial Appointments, The Hindu, Sept 17, 2014, <
http://www.thehindu.com/opinion/op-ed/federalism-in-judicial-appointments/article6416552.ece> last accessed
on February 21, 2015
57
Watershed in Judicial History, The Hindu, January 8, 2015<
http://www.thehindu.com/opinion/editorial/editorial-watershed-in-judicial-history/article6764553.ece>last
accessed on February 22, 2015
58
Sidharth Sharma, What an independent judiciary is all about, The Hindu, Oct 3 2014 – Business Line, <
http://www.thehindubusinessline.com/opinion/what-an-independent-judiciary-is-all-about/article6469163.ece>
last accessed on February 26, 2015
59
Gargi Parsai and B. Muralidhar Reddy, NJAC Bill now goes to State Legislatures, The Hindu, Aug 15, 2014,
< http://www.thehindu.com/news/national/parliament-okays-constitution-amendment-bill-to-set-up-national-
judicial-appointments-commission/article6317264.ece> last accessed on February 26. 2015

21
define it either. The Act gives the Commission the power to supersede the senior-most judge
for appointment as the chief justice on grounds of lack of merit or ability. In the absence of
any methodology for judging ability and merit, this provision could end up packing the
judiciary with “friendly” judges.60

Undermines Judicial Integrity: The NJAC does not ensure judicial integrity and thus violates
the basic structure of the constitution. The Constitutional (99th Amendment) Act 2014 only
establishes a large ex-officio body having three sitting judges of the Supreme Court, the
sitting law minister and two eminent persons. The body will be selecting a large number of
judges and thus will be an onerous task requiring full members.

Curbs the Independence of Judiciary: Article 124C in the amending act of constitution
confers powers to Parliament to regulate by ordinary law. However, the doctrine of Basic
Structure cannot be used to challenge ordinary legislation. 61 Therefore, as per the law laid
down by the Supreme Court, it may not be possible to challenge any law made under the
proposed Article 124C on the grounds that it attacks the independence of judiciary and thus
the basic structure.

60
Indira Jaising, Supra note 2
61
Indira Nehru Gandhi v Raj Narain 1975 Supp SCC 1

22
 CONCLUSION AND SUGGESTIONS

Since the main objection to the collegium system is lack of transparency and alleged arbitrary
selection, it would have been better to make it more transparent and objective such that
people would have known the basis of selection. Also, the involvement of eminent persons
does not seem to solve the dilemma because who are eminent is not clear. Moreover, the
involvement of Law Minister is not required because he may later (if he is an advocate), at
some point of time, practice before the same judges whom he has appointed. Thus an element
of objectivity in the judgments may not be there.

Transfer of judges without their consent should not be permitted. If transfer is permitted at
all, it must be in the hands of the judiciary.

If we take the examples of constitutional functionaries like Comptroller and Auditor General
of India or the Chief Election Commissioner, they are also executive appointments but that
has neither destroyed their independence nor minimised the efficiency in rendering their
services. The CAG is not eligible to further hold office either under the Government of India
or under the Government of any State after he has ceased to hold his office. These provisions
are in order to ensure the independence of CAG. Such a provision can also be made
restricting the post retirement jobs. The rules governing the judges’ seniority, tenure,
transfers and removal need to be insulated from possible manipulation by the executive. It
would have been better if the rules governing the judges’ seniority, tenure, transfers and
removal and the provisions for accountability of the judges had been included in the NJAC
Act itself. Though Judicial Standards and Accountability Bill will take care of these aspects
which may be presented separately in the Parliament later.

A six-member committee is undemocratic due to its centralist features and may not represent
the entire country. It would become very difficult to objectively examine the credentials of
the proposed names of the judges to be elevated or appointed in the higher judiciary. Also,
the representation of the proposed names of advocates and High Court judges may not be
adequate. Out of the six members, three are sitting judges who are already preoccupied with
the huge quantum of work in the Courts and it will become quite an onerous task to consult,
examine the credentials and fulfil other criteria objectively and with devotion in the matter of
appointment of judges.

23
If we see the Judicial Appointments Commission of the U.K., even the laymen are part of the
commission and it is a 15 member body although being such a small country. This makes the
continued and repeated consultations possible and thus only the most deserving are appointed
as judges. There have been no allegations of corruption, nepotism or sycophancy.
Considering the prevailing conditions of judiciary, it would have been better if it were
comprised of more members representing different sections of society and different regions
of India. Greater level of inclusion would also bolster the legitimacy and faith of the general
public in the judicial system.

Thus, considering these aspects it can be said that the collegium could have been made better.
If not, National Judicial Appointments could have been better if there would have been more
full time members. Also, the need for transparency and objectivity should have been duly
looked into. There needs to be made some radical changes in the NJAC Act as well as the
Constitution (99th Amendment) Act for its proper functioning in light of its drawbacks shown
above. Unless the changes are made in the two Acts, the demand for an independent,
functional and transparent judiciary will be a distant dream.

24