Context:

• The controversy surrounding the discovery of massive cash at Delhi HC judge Justice Yashwant Varma's home last week has reignited interest in the debate of judicial appointments in India.
• “Things would have been different” if the Supreme Court had not struck down the National Judicial Appointments Commission Act passed by Parliament in 2014." (Vice President Jagdeep Dhankhar)

Judicial Appointments in India:

• Article 124 of the Constitution establishes and governs the Supreme Court of India.
• Article 124 (2): The President, on the advice of the Council of Ministers, appoints Supreme Court judges in consultation with the Chief Justice of India (CJI).
• B.R. Ambedkar opposed granting veto power to the CJI, rejecting the substitution of “consultation” with “concurrence.”

Evolution of Judicial Appointments:

• Early years (1950-1970s):
  • Initially, the executive had full discretion in appointing judges.
  • Judicial independence was not a major issue despite constitutional amendments.
  • The 1970s saw executive interference, including the supersession of judges, leading to concerns over judicial autonomy.
  • For example, Justice M H Beg was appointed CJI in 1977, overlooking Justice H R Khanna, who was first in seniority.
• First Judges case (1981) - S P Gupta case: The Supreme Court ruled that “consultation” (in Article 124) does not mean “concurrence.” The executive retained discretion in judicial appointments.
• Second and Third Judges cases (1993 and 1998):
  • The Court reversed its earlier stance, ruling that “consultation” meant “concurrence.”
  • The collegium system was established, transferring power from the executive to a body of judges.

The Collegium System:

• Established through judicial rulings, not mentioned in the Constitution.
• Headed by the CJI, it includes the four senior-most Supreme Court judges.
  • It makes recommendations for the appointment of judges to the SC, the appointment of Chief Justices of the High Courts, and the transfer of judges of High Courts.
• A three-member collegium, headed by the CJI and comprising the two senior-most judges of that court, makes recommendations for the appointment of judges to the High Courts.
• The collegium system is often criticized for lack of transparency, accountability, and lobbying within the system.

The National Judicial Appointments Commission (NJAC):

• The Parliament passed the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014.
• These two laws provided for an independent commission to appoint judges to the SC and High Courts, replacing the collegium system.
• The NJAC comprised six members:
  • Chief Justice of India (Chairperson)
  • Two senior-most Supreme Court judges
  • Union Minister of Law and Justice
  • Two eminent persons from civil society (one from SC/ST/OBC/minorities or women) to be nominated by a committee comprising the CJI, the PM, and the LoP in Lok Sabha.
• It enjoyed near-unanimous political support and was ratified by 16 state legislatures.

Striking Down of NJAC (2015):

• The Supreme Court declared NJAC unconstitutional in a 4:1 judgment.
• Key issue: Veto power of non-judicial members, allowing any two NJAC members to reject a recommendation and risking the judiciary being outnumbered by the executive.
• The Court invoked the Basic Structure Doctrine, ruling that judicial primacy in appointments is essential for judicial independence.
• Justice Jasti Chelameswar’s dissenting opinion: Criticized the collegium system’s secrecy, lack of transparency, and lobbying. Argued that NJAC was a better alternative if properly structured.
• Justice Kurian Joseph (concurring judgment):
  • Acknowledged lack of transparency, accountability, and credibility in the collegium system.
  • Later regretted striking down NJAC, citing collegium failures.

Can NJAC be Revived?

• The NJAC was struck down before being tested in practice, leaving room for revisiting judicial reforms.
• Alternative proposals suggest modifications:
  • Giving the CJI a casting vote to ensure judicial predominance.
  • Eliminating the veto power of non-judicial members.
  • Ensuring appointments are not subject to executive reconsideration.

Conclusion and the Way Forward:

• The NJAC case was a missed opportunity for judicial reforms.
• Growing concerns over collegium opacity and internal politics warrant a fresh debate on judicial appointments.
• A balanced system ensuring both judicial independence and accountability remains a key issue in India’s constitutional framework.