INTRODUCTION:-

National Judicial Appointments Commission (NJAC) is a proposed body which would

have been responsible for the appointment and transfer of judges to the higher judiciary in
India.
the Commission would comprise of the following six persons:
• Chief Justice of India (Chairperson, ex officio)
• 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

The Constitution of India gave the higher judiciary another important function in addition
to adjudication of disputes: to regulate the executive and legislature to stay within the
bounds of their powers — to prevent the executive from violating the laws, the
Constitution and the fundamental rights of people guaranteed by the Constitution, and the
legislature from violating the Constitution, as either the legislature or the executive cross
the line ,the judiciary can step in.

The question is not “whether independence of judiciary part of the basic

structure”,unquestionably it is,
does india need an independent judiciary, it does,
does it need a powerful judiciary..it does

whether credibility of the institution is more important than the independence of

judiciary…..the credibility of the institution involves independence,it involves scholarship,
it involves fairness ,and it also involves respecting other institutions,

Original constitution envisages under article 124 [1]and article 217 “That a judge of the
supreme court ,or the high court should be appointed by the president in consultation
with the chief justice,… when this particular provision in the constitution was moved,
DR.B.R ambedkar itself said “ should the president i,e council of ministers alone
have powers to appoint judges, he said this is not the fair procedure,
should chief justice have the power,he said certainly not and finally he says “It
should be exercised by the president,he must have group of advisors,and chief justice of
course is the best advisor in this matter,So both Article 124 and Article 217 with regard to
the high court and supreme court were framed, “that the president shall appoint the
judge in consultation with the chief justice.”

1st deviation takes place in 1993 while interpreting the binding character of consultation,
that consultation means concurrence the chief justice shall appoint the judge,he may
take the opinion of president into consideration.It is on this basis that the Supreme Court,
in the Second Judges Case in 1993, took over the power of appointing judges from
the executive to itself, holding that the judiciary’s primacy in appointing judges would
also comprise the independence of the judiciary. The independence of the judiciary was
seen not just as functional independence but independence in manner of appointments.
it further clarified in 1998,that the chief justice now means a group of judges,through the
collegium, and what happens in 2015 is chief justice that is the collegium shall appoint
judges,and what was participatory function in consultation becomes exclusive
INTRODUCTION:-
function and any involvement of the executive will vitiate the process,that is the basis on
which the 99th constitutional amendment is struck down, so the PARADOX is that
original constitution says “the president shall appoint in consultation with the chief
justice The 2015 judgement says president shall not appoint,in consultation with the
chief justice as Supreme court says “chief justice as the collegium” alone will do it , as
the interpretation says. As no rule of interpretation anywhere in the world where the
provision will mean the opposite of what did the constitution had said,can and today the
2015 interpretation makes it mean the opposite of what the original constitution says ,the
opposite of what DR B.R ambedkar had proposed.
THE rationale is independence of judiciary is the part of the basic structure and in
1973, in the landmark “ Kesavananda Bharati” case, it held that even a “constitutional
amendment could not violate the basic structure of the Constitution.”

For this reason, the independence of the judiciary from the executive and
legislature has been regarded a cornerstone of the Constitution,
and the Supreme Court has held it as an inviolable part of the basic structure of the
Constitution. what comprises of basic structure:-
Parliamentary sovereignty is also the part of the basic structure ,Parliament
primacy is the part of the basic structure,Separation of powers is the part of the basic
structure ,Parliament’s power to legislate is the part of the basic structure,Council
of minister’s is the part of the basic structure ,the Prime ministerial office is the
part of the basic structure, alternate view represented by Leader of opposition is
the part of the basic structure ,as we cannot have a UNI POLAR view which says that this is
one basic structure “independence of judiciary” and start diminishing the role of every
other basic structure of the constitution, and where this now becomes judicial
exclusivity in the matter of appointment of judges. thus,supreme court upholding of one
basic structure of the constitution has come at the expense of upholding others.
DR B.R Ambedkar aptly said
“TO BE INDEPENDENT IS IMPORTANT BUT TO BE CREDIBLE IS MORE
IMPORTANT”,
and to have credibility it is extremely important that there must be checks and
balances of the democracy ,and these are the checks and balance that DR AMBEDKAR
had suggested

IN INDIA:-
THE COLLEGIUM IS called ,five people will decide,to whom they are going to appoint,the
bar doesn’t come to know, the minister has no say in the matter the prime minister’s office
is made into a post office,

LITERATURE REVIEW:-
According to an article titled “MANAGING MISTRUST”
in the appointment of judges
THE judges should have an important role but not an exclusive role,as there is not even
a single modern democracy in the world ,where judges appoint judges,

CRITICAL ANALYSIS :- WITH OTHER COUNTRIES

INTRODUCTION:-
In united states of america ,it is the US attorney general who moots the name for the
appointment of the federal judge,and that is send to the president, the president sends it to
the american bar association , and the ABA holds a nation wide ballot, so it is not hush
hush the ballot is held, and after that,if the bar association endorses it is send to the
judicial committee of the senate, and judicial committee of the senate holds public
meetings ,in those meetings ,notice is given to the objectors ,and the notice is even to the
nominees,the objectors bring their evidence ,witnesses,,the reasons why they are objecting
to,why somebody being mad a judge and after that , the nominee cross examines them,
then the nominee brings his evidence, witnesses documents,and the objectors cross
examine them ,public hearings,they are all reported on the newspapers and the televisions
and after that ,if this US senate committee approves,it goes to the president and then they
are appointed.

The collegium system came into being because of the theory of committed
judiciary,as the idea was to prevent sarkari judges from being appointed,so the intent to
establish collegium was good, As a matter of fact ,judges appointing judges has improved
independence of the judiciary, as judges appointed subsequently were less influenced by
the executive.
But over the years the collegium system has failed,It has, however, not fully solved the
problem of independence, as the problem of nepotism and arbitrariness is still
rampant . The collegium also did not lay down any criteria for appointments or any method
for evaluating candidates on those criteria. It also did not lay down any system for
transparency in appointments. Thus, appointments continued to be made in an arbitrary
and nepotistic manner with the people not being informed about who was going to be
appointed and on what basis.—Earlier it was said that
“In order to become a judge, one did not need to know the law but the law minister.
It is now said that one need not know the law but the existing collegium of judges to
become a judge”

As it emphasises the fact that as india today wants transparency,openness,we need

an independent judiciary,a very competent judiciary,we need a judiciary which has
very high levels of credibility .As we want independence of judiciary,and at the same
time we also want credibility and accountability of the institution ., as in a judiciary where
participatory role of other institutions is eliminated the process remains secret,at least the
appointment process will never have credibility therefore,a judiciary which is appointed by
the participatory role of executive will be a fair judiciary. As the government has been
appointing constitutional institutions like CAG.CEC, CVC, ,which have functioned
extremely well.
as in the appointment commission.
As there is prime minister ,the most important accountable institution in the democracy
Leader of opposition , and the chief justice of india, and if in indian democracy ,this
eminent panel cannot be trusted then nobody else can be trusted,As under the indian
constitutional system we need a system of checks and balances ,as a matter of fact “the
power of appointment which was an executive power ,which was intended to be exercised
in a particular manner judiciary cannot now say ,by a process of interpretation, it will be
exercised in exactly the opposite manner, and the executive power must now belong to the
judiciary,
The research proposes that “there must be independence of judiciary from the
executive ,there must be independence from the legislature,but there is no proposition
that only judges can appoint judges
since judicial independence is also compromised by the lure of post retirement benefits :
INTRODUCTION:-
“ “PRE RETIREMENT JUDGEMENTS ARE INFLUENCED BY POST RETIREMENT
BENEFITS”
post-retirement jobs in commissions and tribunals, in the hands of the executive, or the
permission for foreign trips for judges, also in the hands of the government.

’PARLIAMENTARY PRIMACY AND SOVEREIGNTY IS THE PART OF INDIA’s BASIC

STRUCTURE…THE SUPREME COURT SAYS..” BASIC STRUCTURE HAS TO BE
PROTECTED FROM THE EXECUTIVE, IT HAS TO BE PROTECTED FROM
LEGISLATURE ,IT HAS TO BE PROTECTED FROM THE JUDICIARY AND
SEPARATION OF POWERS IS THE PART OF THE BASIC STRUCTURE”

There is a possibility of keeping a watch on two other agencies of the constitution namely
parliament and executive,and there is none at all under the collegium system to do
likewise, the collegium system has been opaque in its functioning,
unaccountable to anyone
what is it that one needs to put in place, which will allow for a proper balance between the
twin needs to be INDEPENDENT and to be ACCOUNTABLE.

MEASURES FOR JUDICIAL REFORM :-

there should be a full-time commission or a full time independent body which will be
more inclusive in deciding, which is independent of the government and of the judiciary,
than can impart checks and balances, and can impart transparency and credibility to the
system of appointments to the higher judiciary,which goes about the selection in a rational
and transparent manner.There also needs to be some transparency in the selection to prevent
arbitrariness or nepotism. Minimum transparency would require that the criteria for selection of
judges be made known, the comparative evaluation of candidates also be made known, and
names of shortlisted/selected candidates announced before appointment,

2 :- There should be a mechanism in which

“three months prior to the retirement,an option should be called from judges, that whether he
would like to have,pension or same facilities which he is having as a judge of the high court or
supreme court or chief justice of india for that matter, If he opts for pension then he is free to take
that ,but then he will be disqualified from taking any position ,and if he opts for full salary and
benefit ,then his name should be added in the panel ,whenever a post where a statute provides,a
particular position to be filled by a high court judge or a supreme court judge or chief justice of india
for that matter . The executive in consultation with the chief justice of india should
select .thus,helps to solve the problem
“PRE RETIREMENT JUDGEMENTS ARE INFLUENCED BY POST RETIREMENT BENEFITS”

CONCLUSION:-

AS IN THE DEMOCRACY ,ULTMATELY THE POWER RESTS WITH THE PEOPLE,

AND PEOPLE MUST HAVE A SAY IN IT.

[‘’’’’
INTRODUCTION:-
The road to securing judicial accountability is long and hard, but proper
accountability…….for such a powerful and vital organ like the Indian judiciary is essential
for the survival of the rule of law and democracy in this country.. The time has come for the
people of the country, who are the real stakeholders in an honestly functioning judiciary, to
assert themselves and demand for such a body to be appointed…………….
ART 124 and ART 217 AS INTERPRETED IN 2015 JUDGEMENT HAVE BEEN
INTERPRETED TO STATE THE OPPOSITE of WHAT THE CONSTITUENT ASSEMBLY
HAD DECIDED ., not merely the intention in DR AMBEDKAR’s speech in the constituent
assembly
so the PARADOX is the original constitution says “the president shall appoint, The
2015 judgement says president shall not appoint,in consultation with the chief justice
it now means the chief justice as the collegium alone will do it , as that is what the
interpretation says and no rule of interpretation in any jurisdiction will mean the opposite of
what did the constitution had said,

“The judiciary view is final ,however it is not infallible”

“judiciary is final not because it is right,it is right because it is final”
.as justice VERMA WHO PROPOSED this collegium system said that “THIS IS NOT
WHAT I INTENDED ,THE WAY IT IS WORKING ,THE EXISTING SYSTEM IS FAILED ,
WE MUST THEREFORE LOOK FOR A NEW ONE, WHETHER IT IS A PERFECT
COMMISSION OR AN IMPERFECT COMMISSION,CAN BE A MATTER OF DEBATE,
BUT THE SYSTEM NEEDS A CHANGE ,THE SYSTEM NEEDS TO BE REFORMEDand
also to get rid of influence by political class as When the power to appoint was with the
government, especially in the later years, the government often used it to appoint politically
partisan or subservient judges. Also, since there was no transparency, appointments were
often arbitrary and secretAS