INTRODUCTION:

Judicial appointments, especially in the High Courts and the Supreme Court have always been in
controversy as the appointment process has great implication on independency of the judicial
system. Independent judiciary is highly needed to sustain democratic set up of the country. With
an aim to secure the independence and high quality of judiciary, different schemes of judicial
appointment have been endorsed.
Appointment of judges to the Supreme Court of India and the High Courts is provided for in Art.
124(2) and Art. 217(1) of the Constitution respectively. Art. 124(2) reads: Every Judge of the
Supreme Court shall be appointed by the 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
as the President may deem necessary for the purpose and shall hold office until he attains the age
of sixty five years: Provided that in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of India shall always be consulted and Art. 217(1) reads: Every
Judge of a High Court shall be appointed by the President by warrant under his hand and seal
after consultation with the Chief Justice of India, the Governor of * Teaching & Research
Associate of Law, Gujarat National Law University, Gandhinagar the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court
These constitutional provisions have been incorporated after meaningful debate on fundamental
issue of judicial independence that took place in constituent assembly on 24th and 27th of May,
1949. The constituent assembly after long debate adopted the system by which the president
would appoint judges, though mandatorily consulting the Chief Justice of India. This entrustment
of the constitutional role to the Chief Justice of India was done with an intention to create a
check on politically motivated selection in appointment. However, Dr. Ambedkar, speaking in
the assembly, carefully stressed that consultation did not amount to a veto, since that would
result in an unrestricted power being vested in a single person. In this way, a careful inter-
institutional equilibrium in the process of judicial appointments was envisaged by the

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Constituent Assembly - a multiplicity of authorities across the wings of government, checking
and balancing each other to ensure that the dignity of the judiciary was maintained and judicial
independence remained sacrosanct. Law Commission of India in its 14th report titled Reform of
Judicial Administration raised concern on the constitutionally envisaged system of appointment
that the role of executive, especially in the state, was leading to the erosion of the independence
of the judiciary. Probably, this was the beginning of a belief that the judiciary itself, through its
representatives, was best placed to decide on its own composition, and thereby secure judicial
independence.

The Supreme Court of India's collegium system, which appoints judges to the nation's
constitutional courts, has its genesis in, and continued basis resting on, three of its own
judgments which are collectively known as the Three Judges Cases. Following are the three
cases:

1. S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case)
2. Supreme Court Advocates-on Record Association vs Union of India - 1993
3. In re Special Reference 1 of 1998

THE JUDGES TRANSFER CASE:

In S.P.Gupta v. Union of India The correspondence exchanged between the Law Minister, the
Chief Justice of Delhi, and the Chief Justice of India on the appointment and transfer of judges
was not privileged and was therefore not protected from disclosure under the law. A particular
document regarding the affairs of the state is only immune from disclosure when disclosure is
clearly contrary to public interest.
FACTS:

The foregoing case dealt with a number of petitions involving important constitutional questions
regarding the appointment and transfer of judges and the independence of judiciary. One of the
issues raised was regarding the validity of Central Government orders on the non-appointment of
two judges. To establish this claim, the petitioners sought the disclosure of correspondence
between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.

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However, the state claimed privilege against disclosure of these documents under article 74(2) of
the Indian Constitution, which provides that the advice tendered by the Council of Ministers to
the President cannot be inquired into in any court, and section 123 of the Indian Evidence Act,
which provides that evidence derived from unpublished official records on state affairs cannot be
given without the permission of the head of the concerned department. Section 162 of the
Evidence Act provides that a witness summoned to produce a document before a court must do
so, and the court will decide upon any objection to this.

DECISION OVERVIEW:
In a case decided by Justice Bhagwati, the Supreme Court of India rejected the governments
claim for protection against disclosure and directed the Union of India to disclose the documents
containing the correspondence. An open and effective participatory democracy requires
accountability and access to information by the public about the functioning of the government.
Exposure to the public gaze in an open government will ensure a clean and healthy
administration and is a powerful check against oppression, corruption, and misuse or abuse of
authority. The concept of an open government is the direct emanation from the right to know,
which is implicit in the right to freedom of speech and expression guaranteed under Article
19(1)(a) of the Indian Constitution. Therefore, the disclosure of information in regard to
government functioning must be the rule and secrecy the exception, justified only where the
strictest requirement of public interest demands it.

With respect to the contention involving Article 74(2), the Court held that while the advice by
the Council of Ministers to the President would be protected against judicial scrutiny, the
correspondence in this case between the Law Minister, the Chief Justice of Delhi, and the Chief
Justice of India was not protected merely because it was referred to in the advice.

There are only two grounds on the basis of which the Central Governments decision regarding
appointment and transfer can be challenged: (1) there was no full and effective consultation
between the Central Government and the appropriate authorities, and (2) the decision was based
on irrelevant grounds. The correspondence in question would be relevant qua both these grounds,
which necessitates its disclosure. Public interest lies at the foundation of the claim for protection
under the Evidence Act. Under these considerations, the Court must decide whether disclosure of

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a particular document will be contrary to public interest. It must balance the public interest in fair
administration of justice through disclosure with the public interest sought to be protected by
nondisclosure, and then decide if the document should be protected.

The correspondence in the present case was found not to be protected. It dealt with appointment
and transfer of judges, a matter of great public interest, and its disclosure would not have been
detrimental to public interest. The apprehension of an ill-informed or captious public or of
political criticism was not enough to justify the protection of the correspondence. After
examining the correspondence, the Court decided that the Central Government order regarding
non-appointment was justified.

Supreme Court Advocates-on Record Association vs Union of India 1993:

A nine judge bench of the Supreme Court7 duly constituted to pronounce upon this weighty
matter delivered its verdict on the 6 th of October, 1993. The broad issues adjudicated upon by
the Supreme Court,8 revolved around the nature and scope of the constitutional provisions
relating to appointment of Judges9 , the justiclability of the fixation ofjudge strength' 0 and
consent and nature ofjudicial transfers. These issues can be broadly separated under the
following heads:
(a) The Constitutional import of the term "consultation" with the Chief Justice of India, in the
matters of selection and appointment of judges of High Courts and the Supreme Court, as well as
in the transfer of judges from one High Court to another.
(b) The criteria for appointment ofjudges of the Supreme Court and the High Courts.
(c) The nature of the transfer of High Court judges:
Is consent to be taken?
Justiciability of such transfers.
(d) Justiciability of the fixation of judge strength.
In thisjudgement, the majority consisting of J.S. Verma, Yogeshwar Dayal, G.N. Ray, Dr. A.S.
Anand and S.P. Bharucha, JJ. with concurring separate judgements delivered by S. Ratnavel
Pandian and Kuldip Stngh, JJ., held that the view in S.P. Gupta's case, insofar as the issue of
"Primacy" is concerned is over-ruled. The minority consisting of Ahmadi and Punchht, JJ. held
that the executive had primacy over the opinion of the Chief Justice of India while on the matter

5
of the fixation of judge strength, Punchhi did not express a view, Ahmadi, J concurred with
Venkataramiah, J. in S.P. Gupta's case allowing a limited Mandamus to issue.
(a) Import of the term "consultation" The first major issue was the import of the
term'"consultation" occurring in Art. 124. The majority held that it indicates an Integrated,
participatory and consultative process. This entails the full discharge of constitutional obligations
on the part of the constitutional functionaries. Various approaches have been used by thejudges
to show that "consultation" means concurrence or primacy. Notably among which are: - The
Chief Justice of India as the "Pater Familias" would be in the best position to judge.' 2 -- In
contrast to other constitutions the Indian constitution does not vest absolute discretion in the
hands of the executive. Hence the Chief Justice of India cannot be relegated to an inferior
position.' 3 The practice of appointments has become an inseparable part of the constitution
leading to the formation of a convention. This convention does not allow the making of an
appointment without the concurrence of the Chief Justice of India.14 - The Central Government
being a litigant in a large number of cases before the court cannot be a party to the appointment
of judges. - All thejudges have also given the maintenance of the independence of the judiciary
as a reason. The initiation of the proposal must be made by the Chief Justice of India. In the case
of a High Court the proposal must emanate from the Chief Justice of that Court. The Chief
Justice of India is expected to initiate any proposal for transfers. Further a check has been placed
on the discretion of the Chief Justice of India, who is now bound to consult two of his seniormost
colleagues.15 Thus the term Chief Justice of India will effectively mean this judicial troika. If a
proposal for appointment is made by this judicial troika and is turned down by the Central
Government, there are two possibilities. These depend upon the concurrence of the seniormost
colleagues. If the other two judges are of the view that it must be withdrawn, the
recommendation will be withdrawn. However, if they are in concurrence with the Chief Justice
of India, the recommendation will be made again, and it has to be accepted.'
(b) The Criteria for Appointment In relation to the appointment of the Chief Justice of India, the
majority has held, that seniority must be the prevailing criteria, provided of course the person in
question is fit.17 In relation to the appointment of judges to the Supreme Court, the seniority
'inter se' in the High Court as well as their combined seniority has to be given weightage.
Further, the legitimate expectations of the judges slated for elevation must be kept in mind.' 8

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(c) The Transfer of High Court Judges 1) Consent of the transferee is irrelevant. However, the
personal factors of the transferee must be kept in mind by the Chief Justice of India while
effecting the transfer. This is in conformity with the decision rendered in the S.P. Gupta Case.
The transfers effected must not be deemed to be punitive.' 9 ii) Justiciability of such transfers are
not possible, except on the ground that the transfer was not made on the recommendation of the
Chief Justice of India. 20
(d) Justiciability of Judge Strength The fixation ofJudge strength isjusticiable. But, it must be
shown that lack of strength is leading to 'slowjustice', (as it is mandated by Art. 21 that "speedy
justice" is a fundamental right in respect of criminal trials). The opinion of the Chief Justice of
India and the Chief Justice of the respective High Court must be taken into account.2
' Other Issues:
(a) Appointment of the less privileged class Ratnavel Pandian, J. has devoted a substantial part
of his judgement to throw light on inadequate representation of certain classes. He has adduced
statistics to show that women, OBCs. STs and SCs have not been given adequate representation.
He has therefore placed an onus upon the Government to forward lists of these classes, upon
which the Chief Justice of India shall decide
(b) Advice The majority in this case have ruled that the advice that is given to the President
must be constitutional. Any advice that is given to the President which is not in accordance with
the constitutional provisions is not advice. To this extent this marks a landmark in the
interpreting of Article 74; which has been held not to be applicable to Article 124.
CONCLUSION:
This judgement does not auger well for the future. In the words of Punchhi, J. "... In (Sic) foresee
a storm of conflict brewing in its application..." There are many possible flash points. This must
be viewed as part of a macro-trend, namely the splurge in "Judicial Legislation." The judiciary
has not placed checks upon itself and has suffered in consequence, the decision in Unnikrishnan"
and its aftermath is a prime example. The judgement is flawed, ab initio. A large part of the
majority judgement is in danger of being rendered otiose. As M.M. Punchhi, J. has pointed out
26, a large part of the majority decision is obiter, as it was not based on the reference., The Court
has answered questions it was not asked. The reference only contained the question of 'primacy'
and fixation ofjudge strength. Hence, the rest of the judgement.is obiter. Further, this judgement
virtually re-writes the constitution." The word "consultation" can never mean "concurrence".

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This may be an attempt to implement the 12 1st Law Commission Recommendation which never
got off the ground. It is respectfully submitted that it is not for thejudiciary to do the duty of the
legislature. Furthermore, the majority in the instant case have attempted to create a collegium in
the form of the judicial troika. This constitutionally, is untenable. The "Chief Jhstice of India"
cannot mean the Chief Justice and his two colleagues. If this is accepted then in all cases, where
the Chief Justice of India is consulted he must consult the other two. This may cause great
conflict in the future. The Constitution of India has given a different position to the Chief Justice
of India. He is first among the equals no doubt, but he certainly is the first. He is the
administrative head. The above mentioned problems are definitely going to crop up in the
future.The two dissenting judges Ahamadi and Punchhi JJ are slated to be Chief Justice of India.
They have gone on judicial record holding that part of the scheme is obiter. They may not follow
the scheme. This means a great blow is struck to the independence of thejudiciary as in the event
of a conflict the Central Government will have a free hand. There is also conflict and
inconsistencies in the models proposed by Kuldip Singh and VermaJj. The question now being
which model is to be followed? It seems clear that the majority view, J.S. Verma, J.'s, is to be
followed, Kuldip Singh, J.'s views insofar as they are inconsistent, can be held to be dissenting.
But, these problems are unlikely to arise as the process is not justiciable. However, it may lead to
conflict within the judiciary.
In re Special Reference 1 of 1998:
ISSUES:
1. Article 143 of the Constitution of India confers upon the President of India the power to refer
to this Court for its opinion questions of law or fact which have arisen or are likely to arise and
which are of such a nature and of such public importance that is expedient to obtain such
opinion.It looked into the following issues:

(1) whether the expression "consultation with the Chief Justice of India" in articles 217(1) and
222(1) requires consultation with a plurality of Judges in the formation of the opinion of the
Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute
consultation within the meaning of the said articles;

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(2) whether the transfer of judges is judicially reviewable in the light of the observation of the
Supreme Court in the aforesaid judgment that "such transfer is not justiciable on any ground"
and its further observation mat limited judicial review is available in matters of transfer, and the
extent and scope of judicial review;

(3) whether article 124(2) as interpreted in the said judgment requires the Chief Justice of India
to consult only the two seniormost Judges or whether there should be wider consultation
according to past practice;

(4) whether the Chief Justice of India is entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court in respect of all materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment;

(5) whether the requirement of consultation by the Chief Justice of India with his colleagues,
who are likely to be conversant with the affairs of the concerned High Court refers to only those
Judges who have that High Court as a parent High Court and excludes Judges who had occupied
the office of a Judge or Chief Justice of that Court on transfer from their parent or any other
Court;

(6) whether in light of the legitimate expectations of senior Judges of the High Court in regard to
their appointment to the Supreme Court referred to in the said judgment, the 'strong cogent
reason' required to justify the departure from the order of the seniority has to be recorded in
respect of each such senior Judge, who is overlooked, while making recommendation of a Judge
junior to him or her;

(7) whether the government is not entitled to require that the opinions of the other consulted
Judges be in writing in accordance with the aforesaid Supreme Court judgment and that the same
be transmitted to the Government of India by the Chief Justice of India along with his views;

(8) whether the Chief Justice of India is not obliged to comply with the norms and the
requirement of the consultation process in making his recommendation to the Government of
India;

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(9) whether any recommendations made by the Chief Justice of India without complying with the
norms and consultation process are binding upon the Government of India?

. The questions posed by the Reference were answered, but we should emphasise that the
answers were read in conjunction with the body of this opinion:

1. The expression "consultation with the Chief justice of India" in Articles 217(1) and 222(1) of
the Constitution of India requires consultation with a plurality of Judges in the formation of the
opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India
does not constitute "consultation" within the meaning of the said Articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the
recommendation that has been made by the Chief Justice of India in this behalf has not been
made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that
the views of the Chief Justice of the High Court from which the transfer is to be effected and of
the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme
Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the
four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High
Court is concerned, the recommendation must be made in consultation with the two seniormost
puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court, in respect of materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are
likely to be conversant with the affairs of the concerned High Court does not refer only to those
Judges who have that High Court as a parent High Court. It does not exclude Judges who have
occupied the office of a Judge or Chief Justice of that High Court on transfer.

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6. "Strong cogent reasons" do not have to be recorded as justification for a departure from the
order of seniority, in respect of each senior Judge who has been passed over. What has to be
recorded is the positive reason for the recommendation.

7. The views of the Judges consulted should be in writing and should be conveyed to the
Government of India by the Chief Justice of India along with his views to the extent set out in
the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultation process, as aforestated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and
requirements of the consultation process, as aforestated, are not binding upon the Government of
India.

Over the course of the three cases, the court evolved the principle of judicial independence to
mean that no other branch of the state - including the legislature and the executive - would have
any say in the appointment of judges. The court then created the collegium system, which has
been in use since the judgment in the Second Judges Case was issued in 1993. There is no
mention of the collegium either in the original Constitution of India or in successive
amendments. Although the creation of the collegium system was viewed as controversial by
legal scholars and jurists outside India her citizens, and notably, Parliament and the executive,
have done little to replace it. The Third Judges Case of 1998 is not a case but an opinion
delivered by the Supreme Court of India responding to a question of law regarding the collegium
system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional
powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation
filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.[4]

NATIONAL JUDICIAL APPOINTMENTS COMMISSION :

Following a period of intense political struggle in the 1970s and 80s between the judiciary and
the executive, in 1993 the Supreme Court interpreted Articles 124 and 217 so as to accord itself
primacy in the matter of judicial appointments. The reasons for this were: first, that judges were

11
the best placed to judge the ability of a potential judge, and second, that such primacy would
ensure that there was no political interference in the process. The judgment resulted in the
creation of the Collegium, which comprised the Chief Justice and the next two most senior
judges.
Over the past two decades, the Collegium has often come in for sharp criticism for the lack of
transparency in its functioning, a lack of efficiency, nepotism, lack of effective personnel
management resulting in an increasing number of vacancies and the sheer arbitrariness of many
of its decisions. The Collegium is accountable to no one for its appointments.
To address these flaws, the Parliament amended the Constitution last year to create the National
Judicial Appointments Commission (NJAC). The NJAC comprised the Chief Justice and the
next two senior most judges, the Union Minister of Law (as a representative of the political
executive) and two members of civil society, whose suggestions regarding appointments would
be binding on the President. The amendment, and the connected National Judicial Appointments
Commission Act, were passed in both houses of Parliament with near unanimous support.

The creation of the NJAC was seen by some as an attempt on behalf of the ruling Government to
interfere in the functioning of the judiciary, and challenged before the Supreme Court. In
a verdict split 4:1, the Amendment and Act were struck down on the ground that the creation of
the NJAC violated the principle of independence of the judiciary since the judicial members are
not in a clear majority. Further, it was held that the two member veto (where any two members
of the 6 member NJAC could veto an appointment) would enable eminent persons to override an
appointment all the judges had agreed upon. The Court held that it was a judicially recognised
principle thatprimacy of the opinion of the Judiciary is essential for an independent judiciary,
and therefore the mere presence of the executive was a threat to the independence of the
judiciary.
The judgment proceeds on a deep mistrust of the executive and civil society. It is flawed because
it conflates the idea of an independent judiciary with one that is free from executive participation
in the appointment process. To reach this conclusion based on the assumption that the judiciary
is the sole protector of constitutional values to the absolute exclusion to of the other two organs
of the state, is deeply problematic.

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While independence from the political executive is certainly a part of ensuring an independent
judiciary, political interference is not the sole threat to the freedom and independence of judges.
Judges, inter alia, must be free from the influence of powerful corporate houses, of members of
the bar and the influence of the career interests of their own kith and kin. The judgment does not
sufficiently acknowledge the fact that in a democracy, the rule of law is vital and that judges
cannot be above the law. In baldly striking down the Amendment and the Act, without
sufficiently engaging with the possibility of reading down the provisions in order to make them
workable within the Constitutional framework, the judgment appears short sighted and self-
serving.

WHAT IS NJAC?

National Judicial Appointments Commission (NJAC) was a proposed body which would have
been responsible for the appointment and transfer of judges to the higher judiciary in India. The
Commission was established by amending the Constitution of India through the ninety-ninth
constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by
the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC would
have replaced the collegium system for the appointment of judges as invoked by the Supreme
court via judicial fiat by a new system. Along with the Constitution Amendment Act, the
National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of
India to regulate the functions of the National Judicial Appointments Commission.The NJAC
Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India,
and subsequently assented by the President of India Pranab Mukherjee on 31 December
2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April
2015.

On 16 October 2015 the Constitution Bench of Supreme Court by 4:1 Majority upheld the
collegium system and struck down the NJAC as unconstitutional after hearing the petitions filed
by several persons and bodies with Supreme Court Advocates on Record Association (SCAoRA)
being the first and lead petitioner. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh
Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice
Chelameswar upheld it

COMPOSITION:

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As per the amended provisions of the constitution, the Commission would have consisted of the
following six persons:

Chief Justice of India (Chairperson)

Two other senior judges of the Supreme Court next to the Chief Justice of India - ex officio
The Union Minister of Law and Justice, ex-officio
Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

Chief Justice of India,

Prime Minister of India, and
Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition,
then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two
eminent persons, one person would be from the Scheduled Castes or Scheduled
Tribes or OBC or minority communities or a woman. The eminent persons shall be
nominated for a period of three years and shall not be eligible for re-nomination.

FUNCTIONS OF THE COMMISSION:

As per the amended constitution, the functions of the Commission would have included the
following:

Recommending persons for appointment as Chief Justice of India, Judges of the Supreme
Court, Chief Justices of High Courts and other Judges of High Courts.
Recommending transfer of Chief Justices and other Judges of High Courts from one High
Court to any other High Court.
Ensuring that the persons recommended are of ability, merit and other criteria mentioned in
the regulations related to the act.

PROCEDURES TO BE FOLLOWED BY THE COMMISSION:

The National Judicial Appointments Commission Bill, 2014, had laid down the following
procedures for the selection of the Judges of the higher judiciary.

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Procedure for Selection of Supreme Court judges:

Chief Justice of India:

The Commission shall recommend the senior-most judge of the Supreme Court for appointment
as Chief Justice of India. This is provided he/she is considered fit to hold the office.However,
this must be according to the knowledge one possess rather than the age.

Supreme Court Judges:

The Commission shall recommend names of persons on the basis of their ability, merit and other
criteria specified in the regulations.

The Commission shall not recommend a person for appointment if any two of its members do
not agree to such recommendation.

Procedure for Selection of High Courts judges:

Chief Justices of High Courts:

The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High
Court on the basis of seniority across High Court judges. The ability, merit and other criteria of
suitability as specified in the regulations would also be considered.

Appointment of other High Court Judges:

The Commission shall seek nominations from Chief Justice of the concerned High Court for
appointments of High Court Judges or forward a list of such names to the Chief Justice of the
concerned High Courts for his/her views. In both cases, the Chief Justice of the High Court shall
consult two senior most judges of that High Court and any other judges and advocates as
specified in the regulations. The Commission shall elicit the views of the Governor and Chief
Minister of the state before making recommendations. The Commission shall not recommend a
person for appointment if any two members of the Commission do not agree to such
recommendation.

CHALLENGES TO THE CONSTITUTIONALITY:

The validity of the constitutional amendment act and the NJAC Act were challenged by certain
lawyers, lawyer associations and groups before the Supreme Court of India through Written
Petitions. Earlier in August 2014, Supreme Court had dismissed few Writ Petitions challenging

15
the validity of NJAC on the ground that the challenge was premature as the constitutional
amendment and the NJAC Act had not been notified then. After the fresh challenge in 2015 after
the acts were notified, a three judge bench of the Supreme Court referred the matter to
a Constitution Bench.
UNCONSTITUTIONALITY OF THE NJAC:
In a collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 had struck
down the NJAC Act, 2014 meant to replace the two-decade old collegium system of judges
appointing judges in the higher judiciary. The judgement was hailed by lawyers Prashant
Bhushan and Ram Jethmalani, who had appeared for the petitioners challenging NJAC, while
other jurists, lawyers and activists such as KK Venugopal, KTS Tulsi and Jaya Prakash
Narayana opposed it.

The so-called basic structure of the constitution, whose primacy has been upheld by several SC
judgements because it safeguards the separation of powers and the independence of the judiciary
from the executive, remains intact under the NJAC, as the NJACs chairperson is the CJI, who
has an important role to play.

Furthermore, the NJAC is good for democracy (which is also a basic feature of the Constitution)
and requires that no organ of the state, including the judiciary, enjoys absolute freedom.

Attorney general Mukul Rohatgi argued that to retain public confidence, judicial appointments
must be seen both in the context of independence of the judiciary as also the need for checks
and balances on it
Arguing though, The counter-argument is that Parliament made an unconstitutional amendment
by introducing Article 124 A. In the second judges case a nine-judge bench laid down the
primacy of the CJI as part of the basic structure of the Constitution and the 99th Amendment Act
cannot simply violate this now.

PARLIAMENTS SWAY OVER THE NJAC:

Article 124 C gives Parliament powers to govern the functioning of the NJAC by making
ordinary laws in the future.

Arguments for:

16
a. This by itself does not affect the separation of powers. Historically, Parliament has always had
power over the judiciary without compromising the separation of powers.

b. Even with the separation of powers, it is considered normal to redistribute the powers in
favour of one of the pillars of democracy from the other.

c. Parliament has been given legislative supremacy under the Constitution, which is why it
could pass the 99th Amendment that created the NJAC in the first place.

Against:

a. Article 124 C empowers the legislature to freely change the powers governing the NJAC
through the ordinary law-making process. This obviously violates the theory of the separation of
powers. It basically gives the legislative pillar massive powers, which can lead to an elected
dictatorship by Parliament and ultimately the suppression of democracy.

So even if the Supreme Court held that the NJAC is valid, Parliament should not be able to
change the laws related to the Constitution or governance of the NJAC so easily.

RELEVANCE OF THE SECOND JUDGES CASE TO NJAC:

The second judges case decided that the CJI has the final word, i.e. primacy, in judicial
appointments.

One of the major bones of contention in the NJAC matter was whether this principle of the CJIs
primacy had become a constitutional convention, i.e., a fundamental part of the Constitution,
that could not simply be changed by Parliament whenever it felt like it.

In the second judges case the court said that once it is established to the satisfaction of the Court
that a particular convention exists and is operating, then the convention becomes a part of the
constitutional law of the land and can be enforced in the like manner.

Arguments for NJAC:

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Conventions are only a supplementary system of enforcement of the basic structure of the
Constitution. Changing the convention of the collegium system does not change the basic
structure if the independence of the judiciary is maintained.

Against NJAC:

a. The second judges case decision gave the CJI the main power in appointments to ensure the
independence of the judiciary, which has now become part of the basic structure of the
Constitution.

b. Applying the English law doctrine of convention, the collegium system has already developed
into a constitutional convention and should not be tampered with.

NJAC V. THE COLLEGIUM SYSTEM. WHY NJAC IS BETTER THAN THE

COLLEGIUM SYSTEM:
India's politicians, in an extraordinary show of independence and political maturity on Thursday,
corrected an imbalance in the system of selecting and appointing judges to the higher courts by
approving a constitutional amendment to create a National Judicial Appointments Commission
(NJAC). If 15 state legislatures also pass the constitutional amendments, the opaque collegium
system of appointing judges will be history.
While the two bills to give effect to the creation of the NJAC were always a shoo-in in the Lok
Sabha given the NDA's majority, the fact that the Rajya Sabha too waved the bills through
without dissent (and nil votes against) shows how acutely all politicians from almost all parties
felt about it. While one bill sought to create the NJAC, the other one was a constitutional
amendment bill to give the NJAC statutory status.
The constitutional amendment bill, once passed by the requisite number of state legislatures, will
ensure longevity to the NJAC since it would then require another constitutional amendment to
tinker with it. While some senior lawyers like Kapil Sibal and Fali Nariman are already
muttering darkly about challenging the bills and seeking a judicial review, the intent of
parliament is clear: the judiciary cannot appropriate the whole judges appointment process and
defeat the original intent of the constitutions makers.
The constitution clearly says that the executive will appoint judges after consulting the judiciary.
Articles 124 and 217 are the relevant laws on the appointment of judges.

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Article 124, inter alia, says:
Every Judge of the Supreme Court shall be appointed by the 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 as the President may deem necessary for the purpose and shall hold office
until he attains the age of 65 years: Provided that in the case of appointment of a judge other
than the chief Justice, the chief Justice of India shall always be consulted. (emphasis mine).
Article 217 says, inter alia: Every judge of a high court shall be appointed by the President by
warrant under his hand and seal after 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..
The constitution is clear that the executive appoints judges in consultation with the judiciary. Not
the other way around.
In 1993, the Supreme Court reversed the process by creating the collegium system in which
judges would appoint judges and the government could merely object to their nominations. But
the collegium could still go ahead with its decision. This usurpation of power is unprecedented in
the history of constitutional India. It is to end this usurpation that the NJAC bills were enacted.
There are good objections and bad for how the NJAC bills were formulated. The objections
include the following:
One, the judiciary was not consulted. The simple counter to this charge is this: when the
purpose of the new law is to end something that was never intended in the constitution, and
the current CJI has openly defended the collegium system, what is the purpose of consultation?
The powers of parliament to legislate and amend the constitution are paramount. The Supreme
Court will get its chance to confirm the law's constitutional validity if it finds any infirmity in it.
Two, the law has been changed with undue haste. This is certainly true. In theory, the
government could have gone through an elaborate process of consultation. But the fact is law
changes have been suggested for years now. Even the author of the 1993 judgment which created
the collegiums, the last CJI JS Verma, admitted that the collegiums system had failed. And it is
the government's job to judge the political climate for what laws will pass and when. The fact
that no major political party had serious issues with the NJAC bills shows that the laws have
widespread acceptance among legislators.

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Three, the NJAC diminishes the judiciary's role in the appointment of judges. This is not
quite true. The new law says that judges will be chosen or transferred by a six-member NJAC.
Of the six, three would be the CJI and two senior-most Supreme Court judges, two would be
undefined eminent persons, and one would be the Law Minister. If two of the members object
to a judges nomination or elevation, the matter would end there. The two eminent persons are
themselves to be nominated by a three-member team the CJI, the PM and the Leader of the
Opposition (or leader of the single largest party in the Lok Sabha).
If half the NJAC members are judges, how is it tantamount to reducing the role of the judiciary
in judicial appointments? The two-member veto can, of course, stop the judges from getting their
choices in, but the reverse could also be true: two judges, or two politicians, or two eminent
persons, or a combination of any two members of NJAC could hold a veto. If relationships in the
NJAC are frayed, there could be deadlock, but the fact is no one can shove a judge down
anyones throat. The judiciarys role is not diminished; it is being counter-balanced by giving the
executive and politicians some say. This was anyway the original intent of article 124 duly
modified to widen the process of selection.
It is worth noting that in the US, judge selection is entirely a political process (existing judges
have no say) and in Britain (for England and Wales), the 15-member Judicial Appointments
Commission has 15 members, among whom only five are judges. The chairman of the JAC is a
lay person, and not a judge.
In contrast, in the Indian NJAC, the CJI is the head. There is no way anyone can say the new law
diminishes the judiciary.
Four, it is wrong to give the executive (or politicians) a voice in judicial appointments. As
the US and UK examples show, globally it is not judges who appoint judges. Moreover,
democracy means laws are made by elected representatives, and not judges. Judges only have to
interpret the laws and check if they impinge on the basic freedoms guaranteed by the
constitution. In recent years, judges have been foraying into everything, including policy (as in
the 2G judgment, when the judges said natural resources can only be sold through auctions), due
to the general loss of faith in politicians. But voters elect the same politicians. It cannot be any
job of the judiciary to thwart the peoples will. The will of the people means the right to change
the laws as long as they are not in contravention of the basic features of the constitution.

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It could be that the composition of the NJAC could be improved, or that some features (like the
two-member veto) could be problematic. But we will know this only when the law is
implemented just as we discovered the flaws in the collegium system only after 15-20 years of
operation.
The NJAC may not be the best thing to happen to judicial appointments, but it is a darn sight
better than the opaque collegium system. We can fix the warts once they are visible. Parliament
can always fix what is broken, but right now it is the collegium system that is broken. The NJAC
aint broke.

CONCLUSION:
Therefore in my opinion, the National Judicial Appointment Commission should be waved in
with certain minor amendments to cover up the flaws that exist in the present collegiums system.

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