National Judicial Appointments Commission (NJAC)

Context: The discovery of bundles of currency notes at the residence of Delhi High Court judge Justice Yashwant Varma has reignited the debate on judicial appointments.

National Judicial Appointments Commission (NJAC)

Background

• The collegium system for judicial appointments in India evolved through three significant Supreme Court judgments (First, Second, and Third Judges Cases).
• The Collegium, led by the Chief Justice of India (CJI) and consisting of senior-most judges, was given primacy in appointing judges to the higher judiciary (Supreme Court and High Courts).
• Over time, the collegium system was criticized for being opaque, unaccountable, and lacking transparency.

Creation of NJAC: To reform the judicial appointment process, the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 were passed by Parliament in August 2014.

• The NJAC aimed to replace the collegium system with a more balanced and transparent mechanism involving the government and civil society.

Composition of NJAC

The NJAC was designed as a constitutional body consisting of:

• Chief Justice of India – Chairperson (ex officio)
• Two senior-most Supreme Court judges – Members (ex officio)
• Union Minister of Law and Justice – Member (ex officio)
• Two eminent persons from civil society – Nominated by a panel consisting of the CJI, Prime Minister, and Leader of the Opposition in Lok Sabha (one to be from SC/ST/OBC/minorities or women)

Powers and Functions

• NJAC would recommend appointments and transfers of judges to the Supreme Court and High Courts.
• Any two members of the NJAC could veto a recommendation if they disagreed with it.
• The criteria for appointments included seniority, merit, and regional representation.

Constitutional Framework for Judicial Appointments

• Article 124: Supreme Court judges are appointed by the President, who must consult other judges, including the Chief Justice of India (CJI).
• Article 217: High Court judges are appointed by the President after consulting the CJI, the state Governor, and the Chief Justice of the High Court.

Why National Judicial Appointments Commission (NJAC) Was Struck Down?

The NJAC was struck down by the Supreme Court in October 2015 (4:1 majority) on the grounds that it violated the basic structure of the Constitution.

• Judicial Independence: The court ruled that judicial independence is a part of the basic structure of the Constitution.
  • Giving the government and non-judicial members a say in appointments would compromise judicial independence.
• Veto Power Issue: The provision allowing two NJAC members (including the Law Minister or non-judges) to veto appointments raised concerns about potential executive overreach.
  • This would have allowed the government to block appointments supported by the Chief Justice and senior judges, undermining judicial primacy.
• Potential Deadlock: A possible 3-3 deadlock in the NJAC (three judges vs. three non-judges) could have stalled the appointment process.
  • Former SC judge Justice Sanjay Kishan Kaul suggested that giving the Chief Justice a casting vote could have resolved this issue.
• Violation of Judicial Primacy: The collegium system gave the judiciary the final say in appointing judges.
  • NJAC diluted this primacy by introducing non-judicial members and the Law Minister into the decision-making process.
• Threat to Separation of Powers: By giving the executive a significant role in judicial appointments, NJAC was seen as undermining the principle of separation of powers.

Why the Supreme Court Must Revisit NJAC

Issue of Judicial Independence vs Executive Oversight

Article 124 originally vested the power of appointing Supreme Court judges in the President, acting on the advice of the Council of Ministers after consultation with the Chief Justice of India (CJI).

• The shift from “consultation” to “concurrence“ (through the Second and Third Judges Cases) gave the judiciary dominance over judicial appointments, sidelining the executive.
• NJAC was an attempt to restore balance by introducing a multi-stakeholder mechanism involving the government and eminent persons.
• The Supreme Court struck down NJAC on the grounds that it compromised judicial independence, but this conclusion remains contested.

Lack of Transparency and Accountability in Collegium System

The collegium system has been widely criticized for:

• Opaque decision-making – No clear criteria for selection or rejection of judges.
• Lack of public accountability – No formal records of deliberations or reasons for appointments/rejections are published.
• Allegations of favouritism – Judges being appointed based on personal connections rather than merit.

Parliamentary Consensus on NJAC

NJAC was passed with overwhelming support:

• Unanimous approval in Parliament with only one dissenting vote (Ram Jethmalani).
• Ratified by 16 state legislatures.
• Striking down such a widely supported constitutional amendment raised concerns about the judiciary overstepping its authority.

NJAC Provided a Balanced Approach

NJAC included a mix of stakeholders:

• Chief Justice of India + two senior-most Supreme Court judges → ensured judicial independence.
• Union Law Minister → represented the government’s role in appointments.
• Two eminent persons → brought in external, non-political perspectives.

The system aimed to balance the independence of the judiciary with democratic accountability — a more holistic and transparent process.

Dissatisfaction Within The Judiciary

Justice Kurian Joseph later regretted his role in striking down NJAC, acknowledging that the collegium system’s continued failings justified revisiting the decision.

Need for a More Transparent and Accountable Appointment System

Judicial independence should not mean isolation from public accountability.

• A reformed NJAC-like structure could ensure:
  • Transparent criteria for selection.
  • Public disclosure of appointment reasons.
  • Greater involvement of the executive and civil society without compromising judicial independence.

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