RESEARCH TOPIC

NATIONAL JUDICIAL APPOINTMENT COMMISSION

Submitted by
Akash Yogendra Singh
BBA.LLB Second year(2022-2023), Roll no-04, Division-B
New law college, Pune

Under the Subject of

ICT and Legal research

Submitted to
Prof. Puja Mathur

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NATIONAL JUDICIAL APPOINTMENT COMMISSION

1. ABSTRACT

The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined,
democracy itself would be in danger,” said Mr. Arun Jaitley (former Minister in union
government).1

The National Commission for the Appointment of Judges is a constitutional body created to
ensure the transparency of the process of appointing judges of the Supreme Court and High
Courts. This was overturned by the Supreme Court in 2015 as it challenged the independence of
the judiciary. The ruling brought back the collegium system, which actually has no constitutional
provision . India is the only Country of the world where judges are appointed by themselves. In
Order to make the collegium System more transparent and democratic reforms are needed. The
aim of this research is to analyze the importance of a separate body for the appointment of
judges in our country and why our judiciary still has doubts about the judge appointment process.

The research is based on secondary sources, including online data, books, articles and journals.
KEYWORDS

Judges, Collegium , Judicial appointments , NJAC, Supreme Court(SC)

2. INTRODUCTION

• The NJAC proposes to make the appointment of High Court and Supreme Court judges
and chief justices more transparent. They will be selected by the commission, whose
members will be drawn from the judiciary, legislature, and civil society.
• The Constitution Bench of the Supreme Court declared National Judicial Commission
(NJAC) Unconstitutional citing that it violates Basic Structure of Constitution of India.
• Until 1973, there existed a consensus between the Government of the day and the Chief
Justice of India
First Judge Case:

1https://www.google.com/amp/s/indianexpress.com/article/india/india-news-india/njac-sc-verdict-democracy-
cannot-be-tyranny-of-the-unelected-says-arun-jaitley/lite/ (last visited on 2/09/2022)

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A petition was filed in 1982 in the Supreme Court of India. This case is known as the S.P.Gupta
Case or First Judges case. The Supreme court said that Consultation does not mean concurrence.
The President was not bound to make a decision based on the consultation of the Supreme Court.

Article 124(2) “Every Judge of the Supreme Court shall be appointed by the
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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”

Second Judge Case

Another petition was filed in 1993 by the Supreme Court Advocates on Record Association
(SCARA). In this case, the Supreme court overruled its earlier verdict and changed the meaning
of consultation to concurrence. Thus binding the President of India with the consultations of the
Chief justice of India.
Third Judge Case

In the year 1998, the presidential reference to the Supreme court was issued questioning the
meaning of the word consultation in articles 124, 217, and 222 of the Constitution.

The chief justice won’t be the only one as a part of the consultation process. Consultation would
include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are
against the opinion, the CJI will not recommend it to the government.3

Collegium System

In this system of appointment of Judges, the collegium will recommend the names of
the candidates to the Central Government.

Also, the central government will send the names of the proposed candidates for
consultation.

The appointment process takes a long time since there isn’t a fixed time limit for it. If
the Collegium resends the same name again then the government has to give its
assent to the names.

2 https://indiankanoon.org/doc/1164880/ (last visited on 2/09/2022)

3 Dr.JN Pandey, CONSTITUTIONAL LAW OF INDIA, page no.877,878,879 (Central law agency ,58th edition,2021)

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3. REVIEW OF LITERATURE

• As article by Drishti “ Supreme Court could have amended the NJAC Act to have
safeguards that would have made it constitutionally valid and reorganized the NJAC to
ensure that the judiciary retained majority control in its decisions.”4
Also, Until a better mechanism is evolved, the Supreme court can take steps to make
collegium more transparent and accountable to make its functioning democratic.
• The CPM MP from Kerala, John Brittas, cited several instances where candidates
recommended by the collegium belonged to a lineage of judges. This cannot be
overlooked as mere coincidence. As Brittas mentioned in the House, out of 47 Chief
Justices of India till date, at least 14 have been Brahmins. From 1950–1970, when the
maximum strength of the SC was 14 judges, 11 of them were Brahmins. The number
further increased to 18 during 1971–1989. In 1988, when there were 17 judges at the SC,
nine of them were Brahmins, which accounts to more than 50% representation. 5
• Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel and Justice
Kurian Joseph found the NJAC Act to be unconstitutional, Justice Jasti
Chelameshwar was extremely vocal in supporting the Act. He found the NJAC Act
absolutely constitutional and meritorious. He deemed it to be a perfect substitution for the
existing collegium system. In a strongly worded dissent order, Justice Chelameshwar
explained the benefits of the NJAC Act. Justice Chelameshwar pointed out that
transparency is an extremely vital factor in constitutional governance. He supported
Advocate General Mukul Rohtagi’s argument that the exclusion of checks and balances
principle leads to the destruction of the basic structure of the Constitution. Justice
Chelameshwar also supported the inclusion of the Law Minister in the commission,
reasoning that the executive with a vast amount of administrative machinery is capable of
making enormous and valuable contributions to the selection process6.
• Justice Kurian Joseph, a former Supreme Court judge, has expressed ‘regret’ for his
view on the National Judicial Appointments Commission, which he and three other
judges struck down in 2015 as unconstitutional.7

4 https://www.drishtiias.com/mains-practice-question/question-94 (last visited on 2/09/2022)

5 Amar Patnaik/Revisiting the NJAC judgment for credibility/Published: 20th January 2022 01:00 AM/
https://www.newindianexpress.com/opinions/2022/jan/20/revisiting-the-njac-judgment-for-credibility-
2408863.html
6 BS Reporter/NJAC judgment/Mumbai/Last Updated at October 17 2015 12:21

IST/https://www.google.com/amp/s/wap.business-standard.com/article-amp/current-affairs/njac-judgment-5-
things-justice-jasti-chelameswar-said-in-his-dissent-115101700188_1.html
7 By Aditi/News/Published:10th May, 2019 at 12:58

PM/https://www.google.com/amp/s/www.barandbench.com/amp/story/news/regret-my-decision-in-the-
national-judicial-appointment-commission-case-justice-kurian-joseph

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• Union Law Minister Kiren Rijiju said there was a growing voice in favour of the
National Judicial Appointments Commission (NJAC) Act, “It (collegium system) does
not even justify the slightest intent with which the provision was made in the
Constitution,” the minister said in response to suggestions made by House members that
the NJAC should be brought back, with changes, if any”.8
• Another retired SC judge, Justice Deepak Gupta, agreed that the judicial appointment
system requires more transparency. “The collegium system has not worked very well,” he
told The Print. According to Justice Gupta, the government should not get a complete say
in the selection process as was set out in the NJAC. But the body entrusted with the
selection of the right candidates could include retired senior civil servants such as the
cabinet secretary or the chief vigilance commissioner (CVC), he said.9
• “These eminent persons should be those who have been a part of public life and have no
axe to grind,” the retired judge added. The 2015 NJAC verdict, said Gupta, left many
questions unanswered. He noted that even the top court had not yet followed the
directions mentioned in that verdict. One such direction required the apex court to
constitute a secretariat to assist the collegium in the appointment mechanism. The
secretariat is yet to be formed, said Gupta.
• Supreme Court lawyer Vijay Hansaria, a senior advocate, said the appointment system
under the Constitution is “purely an executive” role, which the judges have taken over.
Hansaria, too, felt that there should be a body, with representation from all organs of the
State to select judges. “Let there be a debate on the composition of this body so that there
is no overreach by any particular organ of the State,” Hansaria said. 10

4. RESEARCH METHODOLOGY

The author of the research paper has resorted to doctrinal method of research as the topic of
research relates to analysis of a prevalent law or legal issue. The facts and laws relevant to this
subject are acquired through various books and magazines. Researchers will primarily rely on
these laws, the arguments of various scholars, and their collective analysis to reach conclusions.

8 Special Correspondent
NEW DELHI
DECEMBER 13, 2021 21:41 IST/https://www.google.com/amp/s/www.thehindu.com/news/national/call-from-
within-judiciary-to-change-collegium-system-rijiju/article37946768.ece/amp/
9 Article written by Mohammad sahil Khan/ blog ipleader/July 08,

2022/https://www.google.com/amp/s/blog.ipleaders.in/national-judicial-appointment-commission-
njac/%3famp=1
10 Bhadra Sinha/ Judiciary/13 December 2021/ https://www.google.com/amp/s/theprint.in/judiciary/former-

judges-lawyers-say-collegium-system-needs-to-change-but-njac-is-not-the-answer/779758/%3famp

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In addition, the other data collection sources will be differentiated articles in newspapers and on
the web on the subject.

5. OBJECTIVE OF RESEARCH

The aim of the research is to present such observations that may be of fundamental importance
for understanding the dispute between executive and judiciary over the appointment of judges in
the light of the separation of powers. The author wanted to make all aspects of separation of
powers and judicial independence crystal clear. Researcher will present arguments both for and
against the law. The researchers will argue why the National Judicial Appointments Commission
is a boon to a country like India, where there have been cases where judges’ accountability has
occasionally been challenged with sufficient evidence. Therefore, the establishment of the
National Judicial Appointments Commission is another benevolent step toward judicial reform.

6. RESEARCH QUESTIONS

1) Why was it struck down? How it affected judicial supremacy? What’s the way out
to fill the vacancies?

2) To what limit is the executive’s role is constitutional in the matter of judicial

appointments permissible in as per principles of separation of powers enshrined
under Indian constitution?

3) Is the present system in consonance with the constitutional mandate and provisions?

4) What systems of judicial appointments are followed in other democratic country?

7. Hypothesis

It has been assumed hereby that Indian judiciary is well within its rights to check and
review any law that questions the basic structure of the Constitution and if not in its
consonance, is well within its rights to struck it down.

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It has been assumed hereby that the judiciary in India is independent in nature and bereft
of any influence from executive and from external factors like political conditions,
personal bias and ideologies, etc.

8. SCOPE AND LIMITATIONS

This research paper does not discuss in detail the contents of the various reports presented by
each and every analysis, reports, judgement, reviews and journals etc.

9. SOURCE OF DATA (PRIMARY AND SECONDARY DATA)

Primary Data-

• Nil
Secondary Data

• Newspaper/Blog articles (Bar and bench, the print, The Hindu, blog ipleader, Indian
express etc.)
• Constitution law of India by Dr.J.N. Pandey, 58th edition, Published by Central law
agency
• Indian kanoon legal research engine
• Manupatra, taxman etc.
• Bluebook for citations
• And any other

10. (Subsequent headings)

The constitution of NJAC:11

The Chief Justice of India (ex-officio)
2 senior most Supreme Court judges

Union Minister of Law and Justice

11 The National Judicial Appointments Commission Bill, 2014, http://www.prsindia.org/billtrack/the-national-

judicial-Appointments-commission-bill-2014-3359/

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2 eminent persons selected by CJI, PM and L/O. (1 should be OBC/SC/ST/
Minority/woman)

12The procedure of NJAC:

CJI The NJAC shall recommend the senior most judge of the SC, Provided he is fit to hold the
office .SC Judges The NJAC shall recommend names of persons on the basis of their Ability,
merit and other criteria specified in the regulations.
HC Chief Justice The NJAC is to recommend a Judge of a High Court on the basis Of seniority
of High Court judges. The ability, merit and other Criteria of suitability as specified in the
regulations would also be Considered.

Veto power of members: The NJAC shall not recommend a person for appointment if any two of
Its members do not agree to such recommendation. The NJAC, though proposed to attend to the
failures of the Collegium System, comes with Limitations of its own.
The arguments for NJAC can be several. A few of them have been discussed by the
researchers Here.

1. The basic structure of the constitution which was believed to be defeated by NJAC,
remains Intact because its chairman is the Chief Justice of India and this safeguards
and upholds The independence of judiciary from executive and thus, separation of
powers is maintained.

2. NJAC is good for a democratic country as in no other democratic country; the

judges are Allowed to appoint the judges. Their role is to ensure that peace and
justice is maintained In the country. Democracy means law is made by elected
representatives and not judges.

3. Appointment and transfer of judges requires a thorough personal and professional

Background check of the prospective appointees which can be burdensome for the
judiciary Without a secretariat or intelligence-gathering mechanism.

12 Supra-Section 8

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4. In the Collegium System, seniority of the HC judge for the post of SC judge is often
placed Above several talented junior judges and advocates.

Arguments against NJAC

1. Non-definition of “eminent persons”

2. Against constitutional mandate of separation of judiciary from executive and

legislature .

3. Possibility of a caucus of non-judge members rendered the law defective.

4. At the same time, the argument that the presence of the Law Minister or two
eminent persons in the NJAC vitiated the system is hopelessly flawed.

Mode of Judicial Appointments in the United States of America 13

India has adopted the concept of judicial independence and judicial review from the US
Constitution. Judicial independence has been a core political value in the United States since the
founding of the Republic. The United States was the birthplace of judicial independence and has
actively promoted judicial empowerment through the development of the concept of judicial
review. The uniqueness of the US Constitution lies in the fact that it combines in a single
document the two theories of separation of powers and checks and balances of 1. The judiciary
also has a mechanism built into its democratic framework that makes it accountable to the law.’ ,
wrote James Madison 14during the ratification debate, must derive all its power, directly or
indirectly, from the great mass of the people. Judicial accountability is much stricter in the
United States than in India. In the United States, the appointment of judges is a much more
political matter and the exclusive preserve of the executive branch. The President reserves the
exclusive power to appoint the judges of the higher courts, Federal courts. The Constitution
provides that the President appoints ambassadors, other public ministers and consuls, Supreme
Court justices, and all other officials of the United States with the advice and approval of the
Senate. Political preferences play a key role in the appointment of Supreme Court justices in the
United States. Most Senate nomination recommendations reflect the will of the political party in

13 Mira Gur-Arie, Judicial Independence in the United States: Current Issues and Relevant Background
Information, , http://www.fjc.gov/public/pdf.nsf/lookup/JudIndep.pdf/$file/JudIndep.pdf (Feb. 2, 2015)
14 Id 13

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power. There were Separate instances in which members of the President’s political party were
appointed to the bench.

The United States judicial mechanism also includes direct elections for appointments to the
offices of the state supreme courts. As many as 22 states in the United States use competitive
elections, at least some of the time, to fill seats on the state Supreme Court. Judicial Appointment
Commission for the Appointment of Judges in India, one can undoubtedly conclude in That the
NJAC gives the judiciary a much greater voice in the process of appointing judges. Therefore,
the arguments claiming that the role of the National Commission for the Appointment of Judges
in the appointment and transfer of judges can affect judicial independence, since it has a role for
the executive and the legislature, are not sufficiently substantiated.

What is Critical about the Collegium System?

• Opaqueness and a lack of transparency.

• Scope for nepotism. There are several allegations that to be a judge in India you
must not be a first generation lawyer.

• Embroilment in public controversies as it is the only public institutions where

judges appoint judges.

• Overlooks several talented junior judges and advocates.

The present collegium system is nowhere in consonance with the constitutional provisions. It
does not represent even slightest intent of the “CONSTITUTIONAL MAKERS”.

Related Constitutional Provisions:

15
Article 124(2)of the Indian Constitution provides that the Judges of the Supreme Court are
appointed by the President after consultation with such a number of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary for the purpose.
16
Article 217of the Indian Constitution states that the Judge of a High Court shall be appointed
by the President 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.

15 Supra 2
16 https://indiankanoon.org/doc/1682952/ (last visited on 2/09/2022)

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11. CONCLUSION

Hence, the status quo of the National Judicial Appointment Commission is a benevolent step in
addition with inside the route of judicial reforms. Independence of the judiciary ought to remain
intact at the side of responsibility of the judges. Sanctity of the judiciary relies upon its fair and
independent behaviour which have to be unfastened from arbitrary powers. The supremacy of the
Constitution may be maintained most effective if at the side of separation of powers, the gadget
of assessments and balances is likewise implemented. In a democratic society, wherein
legislature is responsible to the humans and the government has an responsibility in the direction
of the legislature, Judiciary too ought to be responsible to the humans in a constitutional way
which doesn’t results its capacity of presenting unfastened and non partisan justice. As it’s miles
said, absolute energy corrupts absolutely; we the residents of this staggering us of a have to
ensure that each one the 3 organs of the statework in a harmonious manner abiding through the
charter and having assessments and balances over every other. Hence status quo of the NJAC
now no longer most effective makes the judiciary responsible, but additionally strengthens its
independence from any form of malafide sports and partisan character, through making it greater
transparent, democratic according with the intentions of our founding fathers.

12. SUGGESTIONS

1) Maintaining the independence of the judiciary: Filling vacancies is an ongoing and

collaborative process involving both the executive and the judiciary. However, it is
time to think of a permanent and independent body to institutionalize the process
with adequate guarantees to preserve the independence of the judiciary, which
guarantees the primacy of the judiciary but not the exclusivity of the judiciary . You
must ensure independence, reflect diversity, demonstrate professional competence
and integrity.
2) Changing the Procedure of Recommendation: Instead of selecting the number of
judges required against a certain number of vacancies, the collegium must provide a

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panel of possible names to the President to appoint in order of preference and other
valid criteria.
3) Review of the Establishment of the NJAC: The Supreme Court may amend the
NJAC statute to obtain guarantees making it constitutionally valid and reorganize
the NJAC to ensure the judiciary retains majority control of its decisions.
4) Ensure transparency: College members need to start from scratch and engage with
each other. A transparent process adds much-needed accountability to break the
deadlock. Individual disagreements over particular names will persist, but care
must be taken not to affect the institutional imperative of the administration of
justice.

13. REFERENCES

Books :

• Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA, Central law agency, 58th
edition, 2021
• DD Basu, INTRODUCTION TO CONSTITUTION OF INDIA, LexisNexis, 26th edition
, 2021
• Administrative Law (2001), By: I.P. Massey; Eastern Book Company, Lucknow.
• V. N. Shukla, Constitution of India 131 (M.P. Singh ed., 2008).

Newspapers/ Blogs/ Articles/ Documents etc :

• Venu Sundaram, Will the collegium Revive Itself if the Supreme Court voids the NJAC,
The Wire, http://thewire.in/2015/06/15/will-the-collegium-revive-itself-if-the-supreme-
Court-voids-the-njac-3925 (last updated Jun 15, 2015).
• http://www.rajyasabha.nic.in/rsnew/bill/rs_bill_debate/NJAC-House%20-%20E.pdf (last
visited on 2/09/2022)
• MANU/SC/0065/1977: (1977) 4 SCC 193
• 124(2) of the Constitution of India

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