By Sania Kaushik
Legal Intern, H.K. LAW OFFICES
“The bedrock of our democracy is the rule of law, and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
– Caroline Kennedy.
A functioning democratic system requires an independent judiciary. Only an impartial and independent judiciary can serve as a rampart for protecting individual rights and administering justice fairly and without fear of retaliation. Because the court is the guardian of the Constitution, it may be required to overturn Executive, Administrative, and Legislative acts of the Federal Government and the states. Judicial independence is essential for the rule of law to flourish.
The question of how the judges or judicial officers are to be appointed has always been a much-debated issue. The Constitutional articles of 124 (2) and 217 deal with the appointment of judges to the Supreme Court and High Courts, respectively. Under both the provisions, the President has the power to make the appointments “after consultation with some judges of the Supreme Court and of the High Courts as he may deem necessary.” However, the Constitution is silent on the number of judges to be consulted for the appointment of the Supreme Court Judges. Over the years, the word “consultation” has been at the centre of the debate over the Executive’s power to appoint judges. The Executive has held this power since independence, and as for the appointment of the Chief Justice of India is concerned, the principle of seniority is followed.
This convention of seniority was broken once in 1973 when the Indira Gandhi led-government appointed AN Ray as the Chief Justice of India, superseding three senior judges without any logical ground. This incident sparked the controversy between the Judiciary and the Executive on the appointment of judges. As acknowledged by many, this phase was referred to as the phase of ‘Politicisation of the Judiciary’. In 1977 again, the seniority principle was grossly violated when Justice M. H. Beg was appointed as the Chief Justice of India superseding Justice Khanna. This ever-so-growing intervention of the Executive in the judicial arena was overturned in 1980s and 1990s due to a series of cases in the Supreme Court, in which the Judiciary virtually impounded the power of appointment to itself.
THE ‘JUDGE’ CASES AND THE JUDICIAL INTERPRETATION
In the three cases which came to be known as the “Judges Cases”, in 1981, 1993 and 1998, the Supreme Court propounded the collegium system for the appointment of judges. The Chief Justice of India would lead a group of senior Supreme Court judges in making recommendations to the President on who should be appointed. These verdicts limited the Executive’s ability to propose a judgeship candidate and removed the Executive’s veto power.
The First Judge case of S.P. Gupta v Union of India dealt with the Constitution’s provisions related to the appointment and transfer of judges, which brings one to the judicial interpretation of the clause pertaining to such appointments. As far as the word “consultation” in the given provision is concerned, it does not mean “concurrence”, and hence the suggestion of the Judiciary is only advisory in nature and not binding as the Executive was accountable and not the Judiciary.
In the Second Judge case of The Supreme Court Advocates-on-Record Association v Union of India, the ‘collegium system’ was propounded by a nine-judge Constitution Bench for the appointment and transfer of judges in the higher Judiciary. This judgment also overruled the judgment of the first judge case; hence, the consultation of the President was now defined under the collegium system with the CJI and the two senior-most judges of the Supreme Court. Furthermore, the consultation was concurrence and hence binding on the Executive. As a result of this judgment, things started changing dramatically as now, there was a virtual shift in the power of appointment of judges from the hands of the Executive to the Judiciary. The court stated that the deviation from the Constitution’s wording was necessary to maintain the Judiciary’s independence from the Executive, and its integrity.
The Collegium system, which has been around for roughly 21 years, was acknowledged in the Second Judges Case and even in the Third Judges Case. As a result, the Collegium system of appointment became the law of the land and has been followed ever since.
The Collegium system was proposed to be abolished in 1990 with the 67th Constitutional Amendment Bill. Many committees then held discussions and issued multiple suggestions underlining the importance of reforming the collegium structure. Finally, on December 31, 2014, presidential assent was given to the National Judicial Appointments Commission Act.
WHAT IS NJAC?
The National Judicial Appointments Commission (NJAC) was a proposed body in charge of recruiting, appointing, and transferring judicial officers, legal officers, and legal staff for the Indian government and all state governments. The commission was established by amending the Constitution to bring the 99th Constitutional Amendment Act in 2014, which was passed in the Lok Sabha on August 13, 2014, and subsequently in the Rajya Sabha, the next day on August 14, 2014. The commission would have created a new mechanism to replace the collegium method for appointing the judges, which the Supreme Court used via the judicial directive. The National Judicial Appointments Commission Act, 2014, was also passed by the Parliament with the Constitution Amendment Act to regulate the operations of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill were ratified by 16 of India’s state legislatures, and the then President, Pranab Mukherjee gave his assent to them on December 31, 2014. On April 13, 2015, the NJAC Act and the Constitutional Amendment Act came into effect.
However, as soon as October 16, 2015, the Constitution Bench of Supreme Court upheld the collegium system by a 4:1 majority and struck down the NJAC as unconstitutional on the contention that it would undermine the independence of the Judiciary as argued in the petitions filed by several individuals and bodies with the Supreme Court Advocates on Record Association (SCAORA).
DRAWBACKS OF THE COLLEGIUM SYSTEM
The Collegium system of appointment, which sought to keep the Judiciary utterly independent from the Executive, had a number of flaws. The disadvantages of the Collegium system have been emphasised by notable individuals, commissions, and committees, and their criticisms can be summarised in the following arguments.
One of the major flaws of the collegium system was that it lacked transparencyas there was no due procedure to check the reasonableness of the appointment. In addition to that, there was an absolute lack of accountability on the part of the Judiciary. Under the Chairmanship of Mr Verappa Moily, the Second Administrative Reforms Commission noted that “Perhaps in no other country in the world does the Judiciary have the final say in its appointments. In India, neither the Executive nor the legislature has much say in who is appointed to the Supreme Court or the High Courts.”
Another drawback of this system is that it is unconstitutional and autocratic, since “Collegium” is nowhere mentioned in the Constitution and is evolved by the Judiciary. Furthermore, the Constitution only provided for the appointment by the President, in consultation with the Judiciary, and not vice versa. It is also crucial to note how undemocratic the selection process is and how prevalent nepotism is. Therefore, we can say that this system encourages mediocrity in the Judiciary by excluding the talented. The lack of implementation could also be attributed as one of the flaws of this system as it could not prevent the increasing vacancies of judges and cases in courts.
IS NJAC THE SOLUTION?
The underlying question is whether the formation of NJAC would successfully alleviate the problems that the collegium system was suffering?
Firstly, the NJAC corrects the aforementioned claims of unconstitutionality based on the Executive’s opinion having no weight compared to the Judiciary. The NJAC comprises of three judges, the Union Law Minister, and representatives from different political parties. The President would then be informed about the recommendation. As a result, the NJAC places a greater emphasis on the Executive than the Judiciary. Secondly, the tribulation of judicial accountability could be overpowered since the commission would be accountable for its appointments.
However, apart from the above-mentioned points, it does not score in any other way over the collegium system. It doesn’t solve the problem of the lack of transparency. The considerations and procedure of appointment would still be shrouded in mystery. The phrase “any other suitable criteria” will continue to give enough options of nepotism and favouritism to the NJAC members, in addition to the criteria of appointment specifically provided for, in the provisions of the NJAC Act. Furthermore, the NJAC Act stipulates that a minimum of five members of the NJAC must agree with the suggestion for it to be passed; otherwise, the recommendation will not be made. This majority is not just higher than a simple majority (50%) but also higher than the special majority (67%) required by the Constitution to adopt money bills.
Apart from these flaws of the collegium system, which the NJAC Act fails to address, it also has certain drawbacks of its own. Concerns have been raised about the constitutionality of the NJAC Act and the 99th constitutional amendment. While scraping off this amendment and declaring the NJAC Act unconstitutional, the Supreme Court cited that the commission would hamper the independence of the Judiciary, on the grounds that the Constitution itself empowers the various wings of the government to maintain the independence of the Judiciary, since the Judiciary is the final interpreter of the Constitution. The NJAC Act leaves the powers of the judicial appointments with the Executive, almost entirely.
Another contention brought by the Supreme Court was related to the composition of the six-member commission of the NJAC, three of whom are the members of the collegium system, i.e., the CJI and the two senior-most judges of the Supreme Court along with the Union Law Minister and “two eminent persons”. The argument brought forward in the judgment was that three out of the six members of the commission were not necessarily under any clause, from the legal background, and Supreme Court, being a specialised body, may not seek recommendations from a general body. Furthermore, there is neither any provision to state the reasons for selecting the “eminent persons” mentioned in the act nor any provision for stating the reasons for the recommendation of candidates, which can lead to abuse of powers.
As recent as December 8, 2021, the subject of NJAC came into light again, after nearly 6 years, when the Union Law Minister, Kiren Rijiju, told the Lok Sabha that he is aware of the views of people across different sections about the Collegium System and the abolished NJAC Act and how the government will decide on the issue in due course of time. He also mentioned how many retired judges and the Supreme Court Bar Association have been writing to him about how the present Collegium System of the appointment of judges is not the most reasonable one to implement, since it is not transparent, accountable, or objective and how it does not even justify the slightest intent with which this provision was made in the Constitution. Through this stance that he put forward in the Lok Sabha, it could be interpreted that the government is considering revisiting the NJAC Act, since the flaws of the Collegium System outweigh its merits, to come up with the most suitable system for the appointment of judges.
To sum up, the National Judicial Appointments Commission may be a step ahead of the collegium system in terms of the judicial responsibility, but the reality is that there is a very thin line between judicial accountability and dilution of the Judiciary’s independence. India needs to restore the credibility of the higher judiciary by making the process of the appointing judges more transparent and democratic.
 Constitution of India, Article 124 (2)
 Constitution of India, Article 217
 S.P. Gupta v Union of India; AIR 1982 SC 149
 Supreme Court Advocates on Records v. Union of India, 1993
 In re Special Reference 1 of 1998
 21.10.2008, “The Hindustan Times” quoting the then Law Minister, Mr. H.R. Bhardwaj, had reported “Collegium system has failed. Its decisions on appointments and transfers lack transparency and we feel courts are not getting judges on merit”.
 Page 50, Fourth Report, ‘Ethics in Governance’, Second Administrative Reforms Commission.
 26.09.2014, “The Times of India”, quoting the then Union Law Minister, Mr. Sadananda Gowda.