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National Judicial Appointment Commission (NJAC)

National Judicial Appointment Commission (NJAC)

July 8, 2022

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This article is written by Mohammad Sahil Khan of Dr. Ram Manohar Lohiya, National Law University, Lucknow. The article comprehensively discusses the discarded National Judicial Appointment Commission (NJAC), the existing collegium system, and the issues revolving around them.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The Judiciary is one of the three important pillars of democracy, so it becomes extremely pertinent to have the right system of appointing competent judges in order to maintain the dignity of the bench. In India, the collegium system, introduced in 1993 by former Chief Justice of India P.N. Bhagwati, is followed in the appointment and transfer of judges.

There is no Act passed or any constitutional provision in place with regards to the collegium system; rather it has evolved over time through various landmark judgments passed by the Supreme Court. The need for the National Judicial Appointment Commission was aroused because many jurists criticised the existing collegium system, stating that India is the only country where judges appoint themselves and have the power of determining their transfers. In order to have a more transparent system, the National Judicial Appointment Commission Act was enacted, but it eventually got struck down by a five-judge bench, citing the Act as being unconstitutional.

What was the National Judicial Appointment Commission (NJAC)

The National Judicial Appointment Commission (NJAC) was a body which was proposed to make appointments of Chief Justices, Supreme Court judges, and High Court judges in a more transparent manner as compared to the existing collegium system and to replace the collegium system. The NJAC was proposed via the National Judicial Appointments Commission Bill, 2014 by the then Minister of Law and Justice, Ravi Shankar Prasad. The bill was passed by both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent. The commission was established by the 99th Constitutional Amendment Act, 2014. The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.

Composition of the National Judicial Appointment Commission (NJAC)

The Chief Justice of India would be the Chairman of the NJAC
Two senior-most judges of the Supreme Court
The Law and Justice Minister
Two eminent persons would be selected by a committee which would be composed of the Prime Minister, the Chief Justice of India and the Leader of Opposition

Procedure for filling up vacancies

The Centre Government will make a reference to the NJAC in cases of vacancies arising in the Supreme Court or High Courts.
Existing vacancies would be notified to the NJAC within thirty days of the commencement of the Act.
A reference would be made to the NJAC six months prior to when a vacancy arises due to the completion of a term.
In scenarios of vacancy due to the death or resignation of judges, a reference would be made to the NJAC within thirty days of the occurrence of such events.

Procedure for selecting the Supreme Court judges

For the selection of the Chief Justice of India: NJAC would recommend the senior-most judge of the honourable Supreme Court for the office of Chief Justice of India.
For the selection of the Supreme Court judges: NJAC shall recommend the names of judges on the basis of their merit and ability.
Veto power regulation: if any two members of the commission disapprove of any name, NJAC would not recommend that judge.

Procedure for selecting the High Court judges

Chief Justice of High Courts: For the purpose of appointing the Chief Justice of a High Court, NJAC would recommend judges on the basis of seniority, ability, and merit combined.
Other judges of High Courts: NJAC would nominate names and then send those names to the Chief Justice of the concerned high court for his views. The Chief Justice would then consult with two senior-most judges or some other judges and advocates if required. The views of the Chief Minister and Governor are also taken into consideration before making the recommendation.
Veto power regulation: if any two members of the commission disapprove of any name, NJAC would not recommend that judge.

Transfer of Chief Justices and High Court judges

The NJAC is the chief body responsible for making recommendations for the transfer of High Court judges and Chief Justices.

Role of the President

The President has the power to ask NJAC to reconsider their recommendations.
However, if the NJAC makes a unanimous decision while reconsidering, then the President has to make the appointment as per the NJAC’s recommendations.

What is the Collegium system

Prior to the inception of NJAC, judges of the High Courts and the Supreme Court were appointed by the provisions mentioned in Articles 124 and 217 of the Constitution of India. Articles 124 and 217 state that the President shall appoint judges to the Supreme Court and high courts after consultation with the Chief Justice of India and other judges. The concept of the collegium system was introduced by Justice P.N. Bhagwati in 1993, and since then, judges in the higher judiciary are appointed through the collegium system. The collegium system was created to maintain the basic structure of the Constitution by keeping the judiciary independent and to ensure that the Chief Justice of India does not impose his or her individual opinion regarding the appointment of judges, but rather it is a collective opinion of the entire body.

Composition of the Collegium system

A Supreme Court collegium comprises four senior-most judges of the Supreme Court and it is headed by the Chief Justice of India.
A High Court collegium comprises four senior-most judges and is headed by the Chief Justice of that High Court.
The names that are recommended by the High Court collegium are first approved by the Chief Justice of India and the Supreme Court collegium, and after that, it reaches the government.

Procedure for appointing Supreme Court judges

The Chief Justice of India (CJI) initiates the process of appointment of Supreme Court judges. The CJI deliberates with the collegium of the Supreme Court and also consults with the senior judges of the court to which the recommended member belongs.
A file is created in which all the members with whom the consultation takes place have to write their opinion regarding the appointment of the recommended person,
After the initial two processes, the recommendation made by the collegium is sent to the Law Minister, who in turn sends it to the Prime Minister for advising the President.

Procedure for appointing Chief Justice of High Courts

When it comes to the appointment of Chief Justices, there is a policy that a Chief Justice be appointed from outside of his or her respective state.
The Collegium set up for the High Court has the final say in the appointment of the Chief Justice.

Procedure for appointing judges of the High Courts

The outgoing Chief Justice of the respective court initiates the process of appointment of judges in deliberation with the two senior-most judges of that court.
After consultation and deliberation, the collegium of the High Court recommends the name of the high court judges.
The recommendation made by the collegium is sent to the Chief Minister, who then advises the Governor, and ultimately the recommendation reaches the Union Law Minister.

Evolution of the collegium system

The formation of the collegium system owes its origin to the three landmark cases often referred to as the “three judges case.”

S.P. Gupta v. Union of India, (1981)

Prior to the landmark case (First Judges Case), judges were appointed by the President of India but he needed to consult with the Chief Justice of India and other judges. This case empowered the executive in the judges’ appointment process. The key observation made in this case was that “consultation” should not be construed as “concurrence,” which meant that the President is not bound to follow the opinion of the Chief Justice of India in the judges’ appointment. It was also observed in this case that the transfer of judges can also be refused due to “cogent reasons.”

Supreme Court Advocates-on-Record Association v. Union of India, (1993)

A nine-judge bench was created for the landmark case (Second Judges Case) and in this case, the bench went the other way round and they reversed their decision of the ‘First Judges Case.’ The judgement stated that the Chief Justice of India should be given the primary role in the appointment process of judges. The court stated “justiciability” and “primacy” as the main reasons behind the decision. The Supreme Court held that “consultation” really means “concurrence” and a collegium system was introduced for the appointment of judges. The reasoning behind the collegium system’s inception was that it shows the collective opinion of the senior-most individuals involved in the process of judicial appointment rather than an individual opinion.

In re : Special Reference 1 of 1998

The Third Judges Case case reiterated the supremacy of the judiciary over the executive in the course of judicial appointment. On the President’s reference, the body of the collegium system was expanded to a five-member body (for the Supreme Court judges’ appointment), which would consist of the Chief Justice of India and four senior-most judges. In the appointment of the High Court judges, the body of the collegium system would consist of the Chief Justice of India and two senior-most judges.

Why was the NJAC Act struck down

The five-judge bench comprising Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel, Justice Kurian Joseph, and Justice Jasti Chelameshwar struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio. The NJAC Act was termed unconstitutional and was struck down, citing it as having affected the independence of the judiciary. The NJAC Act was repealed by a five-judge bench, famously known as the Fourth Judges Case, 2015. The five-judge bench decided that the collegium system would still be operative in the appointment of judges, although they pointed out that the collegium system is not accurate and the process of ‘judges appointing judges’ should be examined.

Every judge gave out their individual ratio decidendi, with each of them explaining their individual reasoning behind coming to the conclusion. The crux of each of their ratios was that the judiciary should be kept independent of the legislature and executive and that they should not indulge in the process of appointing judges. The Hon. Justice J.S. Khehar stated that “organic development of civil society has not as yet sufficiently evolved.” While other judges supported Justice Khehar’s reasoning, Justice Chelameswar held a different line of reasoning stating that “the judiciary cannot be the only constitutional organ capable of protecting the liberties of the people.”

Justice Khehar raised crucial questions and directly attacked the merits of the NJAC Act. Justice Khehar attacked the NJAC Act on following points:

The involvement of the legislature in the appointment of judges might lead to the creation of a culture of ‘reciprocity.’ By reciprocity, Justice Khehar meant that judges might have the feeling of having to pay back the political executive as a consideration for their appointment to the post of judge and that it would lead to an environment where the appointment of judges might be impacted due to political considerations.
Justice Khehar raised another strong point that the future judges appointed under NJAC cannot be expected to be independent-minded if the Union Law Minister is the member of the commission responsible for their appointment. Further reinstating his point, Justice Khehar pointed out by giving examples that often there are cases that come to the judiciary where there is the involvement of some political figures such as the Chief Minister, Prime Minister, or any other minister from the opposition as well; in such scenarios, the presence of the Minister of Law and Justice as an ex-officio member of NJAC is highly questionable.
The NJAC Act would compromise the principle of independence of the judiciary guaranteed under the existing collegium system. The basic structure of the Constitution enshrines that the judiciary is solely responsible for the appointment of judges.
The NJAC Act provides arbitrary power to the Chief Justice of India, Prime Minister and the leader of the Lok Sabha to appoint two eminent personalities into the NJAC body.
Serious questions were raised regarding the applicability of veto power by the two eminent personalities. Justice Khehar and Lokur opined that “these two persons could together strike out an otherwise valid appointment.” They raised doubts regarding the procedure of removal of these two people in case they are found to be abusing their power.

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 reasoned that it becomes all the more important in the process of appointment. Justice Chelameshwar praised the NJAC Act for involving a smooth and transparent process for the appointment of judges.
Collegium system’s opaqueness was blatantly expressed where he expressed that the proceedings of the collegium are inaccessible to the public and, therefore, it lacks transparency.
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 maintained that the exclusion of the role of the government in appointing the judges is unfair because it disturbs the checks and balances principle. He further added that in a democratic setup, the executive cannot be completely excluded.
In the dissent order, an example of the United States of America was given, where the head of the Executive is conferred with the power to appoint the judges.
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 process.

Issues with the current collegium system

NJAC was struck down citing it to be unconstitutional and void, but that does not mean that the existing system is flawless. Even while striking down NJAC, the bench held that the system of “judges appointing judges” is not accurate and needs to be reconsidered. It has been 29 years since the establishment of the collegium system and a better alternative is yet to be found. The main issues pertaining to the collegium system are:

The collegium system does not provide any guidelines or criteria for the appointment of the Supreme Court judges and it increases the ambit of favouritism.
In the collegium system, there are no criteria for testing the candidate or for doing a background check to establish the credibility of the candidate. The absence of an administrative body is also a reason for worry because it means that the members of the collegium system are not answerable for the selection of any of the judges.
The ‘Second Judges Case’ established the supremacy of the judiciary over the executive. This system disturbs the principle of check and balance. The check and balance principle is necessary because it ensures that no organ of democracy is exercising its power in an excessive manner.
NJAC was struck down for its unconstitutionality, but a closer look at the collegium system tells us that even though the collegium system is not mentioned anywhere in the Constitution, rather it has evolved over a period of time from different landmark cases.
The collegium system lacks transparency.
Nepotism has been often witnessed in the judiciary due to a lack of criteria for the appointment of judges. Nepotism leads to mediocrity due to biases in the judicial setup.

The way forward

After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects. In the recent Winter Session of the Parliament, the Minister of Law and Justice pointed out that the voices are growing in favour of the re-introduction of the NJAC Bill. The Minister of Law and Justice (Kiren Rijiju) lambasted the collegium system, stating that the method is non-transparent and “does not justify the slightest intent with which the provision was made in the Constitution”. The Law Minister also stated that many former judges and legal experts are supporting the NJAC. However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.

It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings. There are certain steps that can be taken in order to amend NJAC.

NJAC needs to be amended to keep the judiciary independent. The earlier NJAC Act gave power to the legislature and executive and thus interfered with the independence of the judiciary.
According to Justice Deepak Gupta, retired senior civil servants need to be inducted into the body appointing judges.
In the 2015 judgement, Justice J.S. Khehar raised issues regarding the involvement of the Minister of Law and Justice in the commission appointing judges. So, any bureaucrat or former civil servant should replace him in the commission.
Since the collegium system lacks transparency, the new system should have transparency in the selection procedure.
The Supreme Court needs to lay down certain guidelines for appointing judges and those guidelines should be strictly followed. Apart from that, all the notifications should be issued in the public domain to make the process more transparent.

Conclusion

It is a sad state that an important pillar of democracy is crumbling owing to a lack of system in the process of judicial appointment. Proactiveness has been missing in resolving the issue since the collegium system came way back in 1993 and ever since it has been questioned even though it has been almost 8 years since the introduction of the NJAC Act. The matter is very critical and complex because, on the one hand, the judiciary should act independently, but on the other hand, the legislature and the executive cannot be completely excluded. The only reasonable solution is to amend NJAC Act in a manner in which the powers of legislature and executive are diluted but at the same time a guideline needs to be formed and the judicial appointment should be carried out in its accordance to ensure the transparency and to give a methodical approach towards the appointment of judges.

Frequently asked questions

When was the NJAC Act declared void?

The NJAC Act was struck down in 2015 by a five-judge bench in 4:1 ratio, citing the Act to be unconstitutional.

Who were the judges on the bench in the Fourth Judges Case?

Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel, Justice Kurian Joseph, and Justice Jasti Chelameshwar were on the bench to examine the constitutionality of the NJAC Act.

When was collegium system introduced in India?

The Collegium system was introduced in the year 1993 by Justice P.N. Bhagwati in the landmark Second Judges Case.

Which Articles in the Constitution contains legal provisions for appointment of judges?

Articles 124 and 217 of the Constitution deal with the appointment of judges in India.

References

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