JUDICIAL APPOINTMENTS IN INDIA AND THE NJAC

JUDGEMENT: FORMAL VICTORY OR REAL DEFEAT

ABSTRACT

The tussle between the Judiciary vis a vis the Parliament and the Executive
has come a long way since the internal emergency period of the history of
our country which reached is culmination in 2015 and 2016. In 2015 99th
constitutional amendment regarding National Judicial Appointment
Commission (NJAC) was declared unconstitutional. In 2016 Memorandum
of Procedure (MoP) remained controversial. The trust deficit between these
organs of the government has once again put into a sharper relief. Forty odd
years have lapsed since the imposition of committed judges policy in CJI AN
Ray Case (1973), the ghosts of deep suspicion between Judiciary and the
other two organs echoes even today. The appointment of judges is one such
grey area where the executive and the judiciary are at loggerheads. It is
necessary to map the changes in the policy of judicial appointments which
balances on the precarious scale of judicial accountability on one side and
judicial independence on the other.
The research paper is divided into seven heads. First head
introduces the difficulties and differences of policy regarding judicial
appointments. Second head explores the original intention of the
constitutional framers. It is followed by third head i.e. “The Judicial
Attitude” where the inconsistent application of the original policy of

judicial independence has been critically evaluated. How the anxious

political parties interfered in the sustainability of judicial policy of
appointment of judges has been discussed in the fourth head “National
Judicial Appointment Commission: Evolution.” The apparent shortcomings
of NJAC are examined in the fifth head under “The Drawbacks of National
Judicial Appointment Commission.” Sixth head deals with the NJAC
judgement and dispute regarding Judicial Independence versus Democratic
Legislation. Seventh part entitled “Conclusion and suggestions” covers
suggestions to improve collegium as discussed in the Supreme Court.
I. Introduction
AN INDEPENDENT AND impartial judiciary is sine qua non
if, democracy based on rule of law and fundamental freedoms is to
sustain. For a federal democracy it has added significance. Though,
the principle and policy of judicial independence rests on various
pillars, appointment of judges is the central pillar of the edifice.
Persons in power have practiced two policies of judicial
appointments i.e., committed judges policy and independent judges
policy. Those who advocate the committed judiciary policy base their
argument on the moot point that it envisages judiciary and the
judges committed towards the laws and public policy made by the
democratic representatives who best know the interests and
demands of the people. The policy highlighted the commitment of a
judge towards the democratic institutions of legislature and
executive and not towards the specific individuals wielding the
power. The Judicial Procedures Reform Bill of 1937 proposed by
President Franklin D. Roosevelt was a legislative endeavour to add
more justices to the U.S. Supreme Court so that favorable rulings
regarding New Deal legislation 1 could be ensured. The plight of the

forgotten masses might fall deaf on the ears of the judges in their
ivory towers, yet this policy never intended to compromise
appointments in judiciary. On the other hand independent judges
policy holders do not advocate any compromise in appointment in
judiciary even if elite judges may not appreciate the plight of
forgotten men.
The appointment of judges, therefore, has been a question of
great deliberation since it involves an extremely important question
with regards to the structure of Indian State, i.e., whether Indian
Judiciary is independent or not. Time and again this debate has been
brought into limelight and detailed discussions have taken place.
From primacy of the executive to the setting up of the collegium and
then to the setting up of the National Judicial Appointment
Commission, the question with regards to the independence of
judiciary has come a long way, and surprisingly as well as
regrettably is still unsolved. Throughout the democratic years of this
country various questions have been raised to determine the status
of appointment and transfer of judges which has been discussed
under various heads.
 The primary function of the judges is to adjudicate. However
the appointment of judges is a purely administrative function. Thus
the judges involved in the collegium had double responsibility on
their back as they had the obligation and the duty of their office to

hear various matters and decide them expeditiously and to

recommend future judges and transfer of judges. They have
obligations under Appellate Jurisdiction, Original Jurisdiction,
Advisory Jurisdiction etc. At the same time they are chairperson or
members of various committees like legal aid committee, PIL
committee. 1A
Thus, this was considered to be over-burdening of the judges.
Secondly, many unreasonable and arbitrary practices had crept in
the appointment process. Nepotism was one such phenomenon
which dogged the process of appointment of judges. National
Judicial Appointment Commission is said to bring about
transparency in the process of appointments and transfer of judges.
The development of a structure for the appointment of judges has
been going on since the making of the Constitution itself. Hence it
becomes pertinent to observe this process from its inception.
After a very stormy journey, the Constitutional Amendment
which was one of the leading promises made by the winning
political party was passed on August 13, 2014. It sought to bring
about major amendments in the Article 124, Article 217 and Article
222 of the Constitution of India. This amendment added Articles
124A, 124B and 124C after article 124. Hence the amendment is
merely to facilitate the formation of a National Judicial Appointment
Commission. By introducing these articles and laying down the
composition of the Commission this amendment gave the National
Judicial Appointment Commission a Constitutional character.2

National Judicial Appointment Commission therefore was a

constitutional body.
It becomes a necessary practice to understand the whole
debate surrounding the National Judicial Appointment. Another
reason is that it creates a dialogue between the two wings of our
Government, the Executive and the Judiciary. Whether
independence of judiciary should supersede the democratic
legislative process? Whether independence of judiciary is a necessary
facet of any democratic country? Whether the inclusion of Executive
in the appointment procedure of the judges would necessarily
undermine the independent structure of the judiciary? The binary of
consultation versus concurrence and a bunch of other important
questions which sadly even after the passing of the most recent
judgment has been able to give justice to them properly.
The matter of appointment of judges has been analyzed in
extreme depth by both the legislature as well as the judiciary. The
debates of the constituent assembly on judicial appointment give a
wonderful insight on the legislative intent of the creators of the
Constitution. While constituent assembly was divided on what
ought to be the correct procedure for appointment of judges, it was
sure that the power and procedure to appoint judges cannot rest
exclusively with one organ. However, when we try to unearth the
judicial intent on the interpretation of the process of appointment,
we find appointment of judges was one more area where judicial
decisions have completely overlooked the intention of framers of the

constitution.3 This makes it mandatory to inquire what prompted

judiciary to avoid the ‘original intent theory’ and to plunge in
confrontationist plank leading to ever-evolving judicial legislation in
the area of appointment of judges.

II. Intent of the Makers of the Constitution

Dr. Ambedkar summed down the three issues which
prevailed with regards to appointment of judges. Firstly, the Judges
of the Supreme Court should be appointed with the concurrence of
the Chief Justice. Secondly, the appointments made by the President
should be subject to the confirmation of two-thirds vote by
Parliament; and thirdly, that they should be appointed in
consultation with the Council of States. He sought to pave out a
middle way solution to this problem and it is hence that we find out
the original intentions of the fathers of our Constitution. He points
out:4
It seems to me in the circumstances in which we live today,
where the sense of responsibility has not grown to the same extent to
which we find it in the United State, it would be dangerous to leave
the appointments to be made by the President, without any kind of
reservation or limitation, that is to say, merely on the advice of the
executive of the day. Similarly, it seems to me that to make every
appointment which the executive wishes to make subject to the
concurrence of the Legislature is also not a very suitable provision.
He was also not in favour of subjecting the appointment of judges to
the concurrence of the Chief Justice of India. He opined that the
Chief Justice of India is also a human being after all, liable to err, and
vesting such a power singularly on him would not be desirable.5

The conclusion of all the discussions made and done which should
be inferred in the present provision of Article 124(1) is that no
absolute power can be transferred to any constitutional functionary.
It is against the very basic tenets of the rule of law. Hence it is the
consultative process between the Constitutional functionaries which
effects and finally brings about the appointment of judges, thus
ensuring the independence of judiciary in a democratic nation.

III. The Judicial Attitude

For the first twenty three years of the constitution the judicial
appointments were made through the process provided under
Article 124 and the spirit of Dr Ambedkar was followed by the
governments in the appointments. The appointments of judges were
made with the consultative process and the opinion of CJI was
hardly avoided. The senior most judge of the Supreme Court was
made the CJI and the executive (president) respected the
constitutional convention of appointing the senior most judge a CJI
till 1973.5A In 1973 this convention was deliberately violated and
Justice A.N. Ray was made CJI superseding three senior most judges.
This was beginning of the application of ‘committed judges theory.’
The same was repeated in 1977 when Justice H.R. Khanna(the senior
most judge) was not the CJI because of his dissenting remark against
the government in ADM Jabalpur case6. This was the worst attempt
of neutralizing the ‘independent judges theory’. The tussle between
the Judiciary and the Executive reached its high point and
culminated into the famous case of S.P. Gupta v. Union of India.7 The
judgment faced flak from all the supporters of independence of
judiciary as it subverted the intent of our
constitution makers. But the 2nd Judges case nullified and overturned
the effect of the S.P. Gupta case and the system of collegium was
conceived.

Difference between 2nd Judges case8 and the 3rd Judges case9

At the very outset the SCAORA case or popularly known as

the 2nd Judges case was conventional dispute between two parties
which had to be settled by the Court whereas the 3rd Judges case was
a Presidential reference made to the Supreme Court under article
14310 of the Constitution. Hence the statuses of both the cases differ
from each other. The former is the law of the land as declared under
Article 14111 of the Constitution whereas the latter is merely an
advice tendered by the Supreme Court on the request of the
President. It has been categorically held by Chandrachud J. that
opinion tendered to the President under article 143 should be held in
the highest regard however it shall not have a precedential value
attached to it and has no binding effect.
The 3rd Judges case is nothing but a detailed inspection of the
2nd Judges case. It reiterates various points covered under the majority
judgment of the 2nd Judges case. The undertaking given by the
Attorney General of India that no review of the 2nd Judges case is
sought is a clear indication of the fact that this reference is merely to
further the judgment delivered in the 2nd Judges case.12
Difference between the two cases is the increase in the number
of judges in the collegium set up to recommend the names of the
judges for appointment. The Court agreed that the opinion of

the Chief Justice of India is "reflective of the opinion of the judiciary,

which means that it must necessarily have the element of plurality in
its formation"13. It further goes on to opine that instead of two, four
senior most puisne judges should be consulted in the appointment
process.
Thirdly, the 3rd Judges case makes a clarification as to the
phrase used in 2nd Judges case i.e. legitimate expectation. All that was
intended to be conveyed was that it was very natural that senior
High Court Judges should entertain hopes of elevation to the
Supreme Court and that the Chief Justice of India and the collegium
should bear this in mind.14 The Court agreed that merit shall be the
predominant consideration for the purpose of appointment.15 The
single unanimous judgment pronounced in the 3rd Judges case is
nothing but the projection of the intent of the Court in upholding the
majority judgment pronounced in the 2nd Judges case.

The Question of Primacy revisited

It has been categorically declared by the Supreme Court in the

2nd Judges case that the process of appointment of judges has to be a
participatory consultative process. The intention of our constitution
makers was inferred as such that the executive and the judiciary both
will be involved in the process of judges’ appointment. However the
majority judgment of the 2nd Judges case stated that if in any case of
conflict between the opinion of the collegium and the executive,
deliberations should be made to come to a unanimous decision,
otherwise as a healthy convention the recommendation made by the
collegium will have primacy and the executive will be bound to
appoint the recommended. The question of primacy will

be a secondary question. The majority decision in the 2nd Judges case

is as following:16
However, if there be any disagreement even then between
them which cannot be ironed out by joint effort, the question of
primacy would arise to avoid stalemate.
The distinction between making an appointment in
conformity with the opinion of the Chief Justice of India, and not
making an appointment recommended by the Chief Justice of India
to be borne in mind. Even though no appointment can be made
unless it is in conformity with the opinion of the Chief Justice of
India, yet in an exceptional case, where the facts justify, a
recommendee of the Chief Justice of India, if considered unsuitable
on the basis of positive material available on record and placed
before the Chief Justice of India, may not be appointed except in
certain situations. 17
If the person recommended by the Chief Justice of India is not
appointed then the reasons for his being unsuitable for the post
should be disclosed to the Chief Justice of India, so that he may
reconsider and withdraw his recommendation on the considerations
provided.
The 3rd Judges case reiterates with the views expressed by the
majority in the 2nd Judges case. The general rule is that the
appointment shall be made on a general consensus within the
collegium. No appointment can be made without the confirmation of
the Chief Justice of India. However if the question arises of Chief
Justice of India being in minority and the majority of senior most
puisne judges disfavors the particular appointment, then the
problem ensues. The majority judgment in the 2nd Judges case very
aptly has given a solution to such a logjam situation:18

The final opinion of the Chief Justice of India is contrary to the

opinion of the senior Judges consulted by the Chief Justice of India
and the senior Judges are of the view that the recommended is
unsuitable for stated reason, which are accepted by the President,
then the non-appointment of the candidate recommended by the
Chief Justice of India would be permissible.
However it was assumed that such a contingency would not
be a very obvious possibility. The chances of such a spearhead
situation were minimal. Also it was interpreted that if after due
deliberations of the reasons disclosed to the Chief Justice of India
with regards to the unsuitability of the recommended the Chief
Justice of India reiterates the recommendation along with the
unanimous agreement of the Judges of the collegium, giving reasons
for not withdrawing the recommendation, the appointment must be
made as a healthy convention.19

The Composition and the Fixation of the Number of the Puisne Senior-Most
Judges in the Collegium

The court stated in the 2nd judges case that by the opinion of
Chief Justice it meant the opinion in plurality of judges and thus
propounded that while making the recommendation the Chief
Justice of India should consult two senior most judges of the
Supreme court for the reason that they are best acquainted with the
persons which are to be recommended as they might have appeared
as attorneys before them in their long tenure and thus have the
capability of understanding the proposed recommendations the
most. It was pointed out by the Attorney General that in a precedent
the Chief Justice had consulted 5 senior most puisne judges in
making an appointment of a Supreme Court judge20. The court took

due consideration of the same and stated that it would be better to

raise the number of judges to be consulted from two to four as it
would ensure a better selection process.21
Also the Court stated that if the successor Chief Justice is not
one of the four senior most puisne judges of the Supreme Court then
he must invariably be made the part of the collegium since it would
ensure the transparency and accountability in the appointment of
judges. Thus those who are “traditionally associated” with the
function of appointing the judges should be involved in the
collegium.
The Court was extremely clear in its stance with regards to the
question of plurality and the number of Judges in the collegium. It
stated that the vacancies are not singular and hence the prospective
candidates who would fill these vacancies could hail from various
High Courts. Thus it would be practically impossible to include the
senior most puisne judges of all those High Courts.22

The Issue of Seniority

Seniority is certainly a factor upon which the appointment of

judges takes place. However the Court clarified the debate regarding
seniority by presenting the concept of legitimate expectation. It
stated that a senior judge has a legitimate expectation to be elevated
as a Supreme Court judge. However those judges who are
meritorious also have a legitimate expectation to be elevated. The
Court held,23 “Unless there be any strong cogent reason to justify a
departure, that order of seniority must be maintained between them
while making their appointment to the Supreme Court.”

Hence in the 2nd Judges case the Court categorically stated that
the person to be appointed shall be the ‘best’ and ‘suitable’ for the
prestigious position of the judge.24 Hence seniority will play its role
but not at the cost of merit. The Court in the 2nd Judges case has
stated:25 "Obviously, this factor applies only to those considered
suitable and at least equally meritorious by the Chief Justice of India
for appointment to the Supreme Court."

Judicial Review in the Matters of the Appointment of the Judges

The Court held in the SCAORA case and reiterated in the

Presidential reference that a great power to check any arbitrary action
has already been provided in ample amount as the appointment of
judges will not be a task for a singular person. The presence of the
senior most judges and the approval of executive shall act as a check
on any absolute power that may be exercised. However the Court
also held that judicial review in the case of an appointment, or a
recommended appointment, to the Supreme Court or a High Court
is, therefore, available if the recommendation concerned is not a
decision of the Chief Justice of India and his senior most colleagues,
which is constitutionally requisite.

The obligations of the Chief Justice of India

The first and foremost obligation of the Chief Justice of India

is to make such a recommendation to the Executive who is
acceptable to it as the best and suitable choice.26 This obligation
exists on the shoulder of the Chief Justice since the proposal of
making an appointment shall be moved by the Chief Justice. The
recommendation shall be made in written and all the just and cogent

reasons for the recommendation must be laid down along with the
views of other judges and prominent members of the bar consulted
for the recommendation so made.27 The Memorandum on the
Appointment of Judges28 which was made after the 3rd Judges case
also has laid down the obligations of the Chief Justice of India. Apart
from the above numerated obligations, the Chief Justice of India has
to duly take cognizance of the advices tendered by the senior most
judge of the parent High Court of the candidate. But he should not
confine himself to just that, he should duly take into consideration
the opinions of the judges who have, on transfer, occupied the office
of a judge or Chief Justice of that high Court.
 The Chief Justice should make a memorandum of the advices
tendered by a non judge on which reliance has or even has not been
taken and should submit it to the Government of India.29

IV. National Judicial Appointment Commission: Evolution

The debate of an independent judiciary has a continuing
existence and snippets of the demands of a judicial commission can
be seen throughout the legal history. The Constituent assembly had
appointed an ad hoc committee to recommend the best method of the
appointment of judges. The purpose of this committee was to ensure
an independent yet committed judiciary. It unanimously laid down
that there should be a panel of 11 members which would comprise of
the some Chief Justices of High Courts and few members of both the
houses. The nomination would be confirmed by at least 7 of those
members and then shall be presented to the President for

Vol. 3 Jamia Law Journal 2018

confirmation.30 A very nascent form of this judicial commission may

be observed here.

Ad Hoc Committee Report (1949)

An ad hoc committee was constituted by the constituent

assembly to suggest the method for the appointment of judges. It
unanimously recommended a panel of judicial and parliamentary
members to nominate future judges. The President had to confirm
these nominations.31 The constituent assembly did not consider
these suggestions and discussed more democratic methods of
appointment of judges.

121st Law Commission Report (1987)

The Commission makes elaborate references to Missouri Plan

of United States of America, which was not followed in the U.S.
Constitutional setup.32 It desired the Chief Justice of India with three
senior most judges, the predecessor to the office of Chief Justice of
India, i.e., who has retired from the post of Chief Justice of India to
whom the Chairman has succeeded, three Chief Justices of High
Courts according to their seniority, Union Law Minister and
Attorney General of India and an outstanding law academic as
member.

Venkatchalaiah Committee Report (2003)

On the basis of the Law Commission of India report of 1987

National Judicial Commission was proposed in the Constitutional

(67th Amendment) Bill, 1990. The 1998 opinion indeed enlarges the
‘collegium’. In this sense, the purpose of the said Amendment Bill is
served. 33
In 2003 the National Judicial Commission Bill had been
introduced through Constitution (98th Amendment) Bill. The Bill
lapsed due to the dissolution of the Lok Sabha. After the formation of
the 14th Lok Sabha(2004-2009) National Advisory Council (NAC)
prepared a concept paper on a National Judicial Commission. The
Constitution (120th Amendment) Bill, 2013 and the Judicial
Appointments Commission (JAC) Bill, 2013 were introduced in the
Rajya Sabha in August 2013. The Standing Committee submitted its
report on the JAC Bill, 2013 in December 2013. This was passed by
the Rajya Sabha but lapsed with the dissolution of the 15th Lok
Sabha. The JAC Bill, 2013 was withdrawn on August 11, 2014.

The Differences between the 120th Constitutional Amendment Bill, 2013

and the 99th Constitutional Amendment Bill, 2014

Hence the amendment was not made necessary to be affected.

The Constitution (121st Amendment) Bill, 2014 and the National
Judicial Appointment Commission Bill, 2014 were introduced in the
Lok Sabha on August 11, 2014.
The predecessor of this Bill of 2014 was the Constitution (120th
Amendment) Bill, 2013. This Bill, which was passed by Rajya Sabha
lapsed due to the dissolution of the 15th Lok Sabha. The Standing
Committee of 2013 had submitted its report with regards to the
Judicial Appointment Commission Bill, 2013. But, this bill also
lapsed due to the dissolution of 15th Lok Sabha.
 The Bills of 2013 differed in a few aspects from the Bills of
2014. Various additions were made to the Bills of 2014 referring to
the recommendations made by the Standing Committee of 2013. It is
nevertheless important to note the variations brought in the 2014
Bills which were passed by both the Houses. The 2013 Bill was silent
on certain points, while on many other points the 2014 simply
mirrors the previous bill. For instance, the functions of the
Commission under the Bill of 2013 have been incorporated in the Bill
of 2014 verbatim. The composition of National Judicial Appointment
Commission remained the same from 2013 Bill to the 2014 Bill. The
Bill of 2014 however, added the recommendations made by the
Standing Committee that one of the eminent persons shall be
nominated from amongst the Scheduled Castes, the Scheduled
Tribes, Other Backward Classes, Minorities or women.
The lapsed Constitution (120th Amendment) Bill, 2013 left the
composition and functions of the Judicial Appointment Commission
to be determined by law made by the Parliament. The Bill of 2014
again incorporated the recommendation of the Standing Committee
which stated that the composition and functions of the Judicial
Appointment Commission shall be included in the Constitution
while the procedure to be followed by the commission shall be
determined by law made by the Parliament.
The Powers of the President to require reconsideration was
not addressed by the Bill of 2013. However, the Bill of 2014
specifically incorporated this aspect. The President may require the
Commission to reconsider the recommendations made by it. If the
Commission makes a unanimous recommendation after such
reconsideration, the President shall make the appointment
accordingly.
The Bill of 2013 had imparted the power to initiate the
appointment proceedings and the short listing of the candidates on
The Union Secretary of the Department of Justice who will initiate
the process by inviting recommendations from the Chief Justices of
High Courts, the central and state governments. However, this
aspect was changed in the 2014 Bill, where the specific procedure of
short listing of candidates for Chief Justice of India and the judges of
Supreme Court. The Judicial Appointment Commission is imparted
the power for initiating the proceedings of appointment. The veto
power of two members of the commission was not mentioned in the
Bill of 2013 but was incorporated in the passed Bill of 2014.

V. The Drawbacks of National Judicial Appointment

Commission
A detailed reading of both the 99th Amendment and the NJAC
Act of 2014 brings forth many factors that can be said to undermine
the primacy of the judiciary in appointment and transfer matters.

Predominance to the Executive

The first which can be pointed out is the insertion of Article

124C in the Constitution by the 99th Amendment. The very wordings
of the article give an impression of the predominance of executive in
the appointment matters. Article 124C states that Parliament shall be
the one to regulate the process of appointment of the Chief Justice of
India and other Judges of the Supreme Court and Chief Justices and
other Judges of High Courts by enacting statutory provisions and it
shall empower the Commission to lay down by regulations the
procedure for the discharge of its functions, the manner of selection
of persons for appointment and such other matters as may be
considered necessary by it. For the furtherance of this article the
Parliament indeed enacted the National Judicial Appointment
Commission Act, 2014 and empowered the Commission to make
rules and regulations with regards to the procedure of appointment
of judges. 34A

Initiation of the Process of Appointment

A major departure from the pre-established norm was seen
through the Section 4 of the National Judicial Appointment

Commission Act34 where the Commission was made the initiator of

the proceedings of the appointment of judges which since the times
of the Constituent Assembly Debates was the prerogative of the
Chief Justice of India along with the consultation of other judges. In
the most recent 4th Judges case35 Goel J. in his concurring judgment
clearly points out to this anomaly. He states:36
Convention of initiation of proposal by Chief Justice for the
High Courts and CJI for the Supreme Court and other scheme as
reflected in the memoranda earlier mentioned and as laid down in
decisions of this Court has been replaced.
The Memorandum on the Appointment of Judges, 1999 had
clearly laid down that the Chief Justice of India would be the
initiator in the proceedings of appointment of judges.37

Composition of the Commission

This brings us to the vital question of the composition of the

Commission. Article 124A of the Constitution lays down the
composition of the Commission. The precedent which was set by the
2nd Judges case and then re-affirmed by the Presidential reference of 1998
had laid down the formation of a collegium of 5 senior most puisne
judges of the Supreme Court including the Chief Justice of India. The
infiltration of the executive is evident from the fact that the present
Commission consists of only 3 judges representing the judiciary

including the Chief Justice of India out of the total 6 members. The
number has been brought down from 5 to 3. Not only that the
committee that would nominate the two eminent members to the
collegium has only one representative from the judiciary and that is
the Chief Justice of India. The paradigm shift in the balance of power
between the executive and the judiciary is imminent.

Position of Chief Justice of India

But this is not the only reason why the advocates of judicial
independence are arguing against the setting up of the Commission.
Second proviso to Section 538 and Section 6(6)39 of the National
Judicial Appointment Commission Act, 2014 state that the
recommendation shall not be made if any two members of the
Commission do not conform to it. It conveniently left the question
open as to the position of the Chief Justice of India with regards to
the appointment or non appointment of the recommended. In other
words if the three members of the collegium and the law minister
recommends on the suitability of a prospective judge, the two
eminent members (who may be from a non law background) may
neutralize the recommendation. Extra legal or non judicial factors
have all potential to dominate through this veto in the judicial
process of appointment of judges. In 4th Judges case (NJAC judgment)
this was one of the most objectionable rationale of the majority.

Federal element of the Appointment of Judges

The federal characteristic of the appointment of High Court

judges has also been watered down to a very great extent. The

constitutional amendment has upgraded the presence of central

executive and downgraded the presence of State executive.

i. Absence of the Governor: The new Article 217 has removed the
need of consultation with the Governor of the State with
regards to the appointment of judges to the particular High
Court.40 Section 6 of the 99th Amendment Act, 201441 very
smoothly divests the Governor of his consultative powers.
Although complacency may be seen in Section 6(7) of the
National Judicial Appointment Commission Act, 201442 where
the Commission is asked to entertain the views of Governor and
the Chief Minister of the State concerned before making any
recommendation. Nevertheless the role of the State
Constitutional Machinery has been devolved from an important
constitutional status to a mere formality ensured in a statue.
ii. Absence of State law ministers: Another questionable point is
the logic of presence of union law minister in the appointment
of High Court judges. Only the Central Executive finds its
representation in the Commission through the Federal (Central)
Law Minister, while State Law Ministers do not find any role in
the new setup for the appointment procedure.
The current debate on the appointment of judges and the
independence of judiciary revolve around the aforementioned issues.
Adding spice to the ensuing brouhaha is the refusal of the Chief
Justice of India to be a part of the Commission, defying the
very Constitutional provision constructed by the Parliament he is
avowed to protect and it seems the situation is only gaining a
directionless momentum.

VI. Judicial Independence versus Democratic Legislation: NJAC

Judgement

Substantial issue: The Appointment of Judges

On 16th October, 2015 the judiciary took a tough stand and

stuck down the 99th Constitutional Amendment of 2014 in the
Supreme Court Advocates on Record Association v. Union of India (4th
Judges case)43; a move which is celebrated by many pro-judicial
independence supporters and frowned upon by those who believed
the democracy to be the heart and soul of the Constitution. There are
various problems which have been voiced against the recent
judgment. The amendment was declared unconstitutional by a
majority of 4:1 with Chelameswar J. giving a dissenting opinion in
favour of the retentionist view.
Although the judgment does manages to maneuver a way to
uphold the collegium structure as the foreword to the independence
of judiciary which is a basic structure of the Constitution, but it raises
few extremely important questions to consider. One view holds that
this verdict upholds an extra constitutional device created by the
Supreme Court’s own members to meet its own ends rather than
accepting a system lawfully enacted by a popular elected
Parliament.44
The judgment may be celebrated for the fact that it has upheld
the independence of judiciary as the basic structure of the
Constitution and it is a well established fact now that the basic

structure of the Constitution cannot be violated or be taken away. 45

However, the doctrine of basic structure itself remains on very flimsy
ground. The judiciary has vested upon itself to be the sole
determinant of the various components that can be the part of the
basic structure of the Constitution.46 Hence, the unease of the
parliament is not completely unjustified.
 Coming to the judgment, Khehar J. along with Lokur J.,
Kurian J. and Goel J. has heavily relied on the combined reading of
the case of Samsher Singh v. State of Punjab47 and Sankalchand Himatlal
Sheth v. Union of India.48 In the former case, as relied by Khehar J. the
Supreme Court had held that while making the appointment of the
judges to the High Courts or the Supreme Courts under Article 124
and Article 217 respectively, the President had to compulsorily rely
on the advice tendered by the Chief Justice of India. This stance of
the Supreme Court was also reiterated in the Sankalchand’s case.49 But
this precedent was very conveniently ignored in the First Judges
case. And thus, the Supreme Court in the recent decision has upheld
the primacy of the chief Justice of India in the matters of
appointment. The court has relied upon the Constituent assembly
debates and has upheld the interpretation granted to them in the 2nd
Judges case and the 3rd Judges case.
Khehar J. plied heavy reliance on the Memorandum of
Procedure on the Appointment of Judges, 1999 which involves a
highly interactive role of the Executive during the process of
selection of a judge. However, the inadequate participation on the
part of the executive has led to this affair becoming a judiciary
dominated sphere. But executive is the only one to be blamed for its

inaction despite the participative role they have been assigned

with.50

The Dissenting Opinion and the Basic Feature Doctrine

Chelameswar J. gave a dissenting opinion and claimed that

although independence of judiciary is the basic structure of the
Constitution. With regards to the non-reviewable status of the
Second Judges case and Third Judges case he states,51 “It appears to
have been a joint venture in the subversion of the law laid down by
the 2nd Judges case and 3rd Judges case by both the executive and the
judiciary which neither party is willing to acknowledge.”
He poses a question that whether there is any difference
between the ‘basic feature’ of the Constitution and the ‘basic
structure’ of the Constitution.52 And he states that there is a clear
distinction between the two concepts. He states:53
 These cases only indicate that: (i) the expressions ‘basic
structure’ and ‘basic features’ convey two different ideas, (ii) the
basic features are components of basic structure. It also follows from
these cases that either a particular article or set of articles can
constitute a basic feature of the Constitution. Amendment of one or
some of the articles constituting a basic feature may or may not result
in the destruction of the basic structure of the Constitution. It all
depends on the context.
Abrogation from a basic feature will not be an ab initio invalid
act like the violation of the basic structure of the Constitution. He
stated that the basic feature of the Constitution is not the primacy of
the Chief Justice of India, rather the fact that no Constitutional

functionary shall be vested with any kind of absolute power, be it the

President of India or the Chief Justice of India.
This judgment voices the growing concern around judiciary’s
unchecked, unhindered power to create laws and strike down laws
at its discretion. With judiciary usurping the role of the sole
interpreter of the Constitution, lack of an effective system of checks
and balance over judiciary poses fundamental questions on the
democratic and separation of powers setup of our nation. On the
issue of appointment of judges the majority expressed its serious
concern on the defects of the collegium system and the Supreme
Court has invited opinions on improving the collegium.

VII. Conclusion and Suggestions

The Supreme Court had invited suggestions to improve the
collegium in order to make it more efficient and enhanced. On 3rd
November, 2015 the Supreme Court released an order with regards
to the compilation of all of the suggestions.54 Additional Solicitor
General Pinky Anand and Senior Advocate Arvind P. Datar made a
report on this behalf. The crux of all the suggestions could be
summed up into three major heads. These are the most pressing
changes that have to be brought in the collegium to free it from the
many evils it festers. They are as following:
i. Transparency
ii. Eligibility of the judges
iii. Secretariat
 iv. Complaint Mechanism
Firstly, the collegium post 1998 was said to be a secretive and
opaque body whose decisions and the rationale behind those
decisions were not laid open for any kind of scrutiny. Hence a
number of suggestions strived to make the collegiums, a transparent

and accountable body. There must be well defined criteria to appoint

a judge and the same should be made publicly accessible on the
Supreme Court’s official website. The candidates should duly reveal
all their relations in the judicial fraternity so as to avoid any
nepotistic bias that may arise. Fali S. Nariman has however pointed
out that too much transparency would also be a hindrance in the
process of appointment.55
Secondly, few suggestions pointed out that the eligibility of
the judges must be clearly demarcated. They should be interviewed
by the collegium and the zone of consideration should be made
wider and should not give sole consideration to the relatives of the
judges. The judges of tribunals and District Courts should also be
considered to be elevated.
Thirdly, it was realized that the Judges of the collegium were
already burdened with the primary task of adjudication of cases;
hence the extra administrative work of the appointment of judges
would be cumbersome to perform. Hence, the preliminary tasks of
collecting the data with regards to the candidates of appointment, for
instance their eligibility and the number of judgments they have
delivered, the quality of the judgments etc. This would reduce the
burden on the judges of collegium and efficiency would be ensured.
Lastly, there is an imminent need for a complaint mechanism
for the collegium. If there is any complaint as to the working of the
collegium, it shall be duly addressed. Also, if there is a complaint
which is prima facie correct, it shall be directly dealt by the Executive.
However, frivolous and mischievous complaints should be rejected
decidedly.56
 These repetitive confrontations between the judiciary and the
executive have failed to give a concrete solution to the problem of the
appointment of judges. There exists over 400 vacancies in total of the
posts of judges in the Supreme Court and all the High Courts
combined. This problem is a more pressing issue and would
seriously undermine the efficiency of judiciary. The question which
all the constitutional functionaries should ask themselves while
determining the fate of the appointment of judges is, that what is a
more dire need, the independence of judiciary or the efficiency of
judiciary? Are these two factors, the independence and the efficiency,
two completely separate factors or instead are totally inter
dependent on each other? Should independence of judiciary depend
upon the efficiency of judiciary and vice versa? From the inception of
this debate, that is, from the inception of the constitution itself, there
has been no actual focus on the efficiency of judiciary. It has forever
been treated on sidelines of the major issue and that is of the primacy
of opinion and the independent judiciary. But the issue of efficiency
of judiciary has to be at the epicenter of any kind of debate involving
the independence of judiciary. With the vacancies in the courts and
the heavy backlog of the cases, there has to be some quick action
taken to solve these problems. An efficient judiciary is the need of
the day.
The latest 4th Judges case might have given the upper hand to
the Judiciary in the matter of appointment of judges, but it has raised
substantial question on its slowly growing power of judicial review.
Indian judiciary has emerged out to be one of the most powerful
judiciaries in the world. And example can be seen in this case itself.
Judiciary being the sole interpreter of the Constitution and the
determinant of the basic structure has endowed itself with such
exemplary power which is not healthy for any democratic country.
But, to say that the judiciary must be docile to the whims and
fantasies of the Parliament and executive, is also a poison to the
democracy, because then the whole structure of checks and balance
would come blithering down. Thus, all the three organs of the
government should try to realize the true spirit of our Constitution
which was summed up by Dr. B.R. Ambedkar that the absolutism of
any kind would result into a stunted growth of the nation.
Participative harmony between all the organs of the government is
the need and requirement for any healthy democratic nation. It is up
to these organs to give up their collective egos and move forward
with the thought of the greater good in mind. This greater good is
nothing but the all-round development of our nation with social,
economic and political justice rendered to all.
On 3rd October, 2017 the collegium made a historic move by
deciding to upload its recommendations and reasons of
recommendations or reasons of rejection of selection of judges.57 It
was appreciated by all, though a few termed it ‘cosmetic.’ But soon
the conflict between right to reputation and right to information
emerged. As the reasons of rejections contained adverse remarks
against the judges or advocates, this may go against their reputation.
This may be resolved if reasons of rejections is personally
communicated to the candidates. A greater transparency would
bring greater credibility and quality to judicial appointments.

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