Explained: NJAC Judgement

The deficit of trust between the Judiciary and the Executive has always remain in existence, creating a tussle between both of these fundamental organs of the government. These contretemps have come along a long way since the internal emergency period of 1975 to reaching a pinnacle in 2015-16[1], with the introduction of 99th constitutional amendment act which was mainly concerned with the National Judicial Appointment Commission (NJAC) in 2014 to the Act being declared unconstitutional in 2015.

What is NJAC? The National Judicial Appointment Commission, as the name suggests, it is a commission meaning “a special committee or group that controls or investigates something,”[2] constituted specifically to take the responsibility of appointing and transferring judges.

Who are the members of NJAC?

  1. The Chief Justice of India (CJI) as chairman
  2. Two senior most judges of the Supreme Court
  3. The minister of Law and Justice
  4. Two “eminent” persons who are to be selected by a team comprising of the CJI, Prime Minister of India and leader of the opposition.

What is the function of NJAC? As mentioned above, it is the sole constitutional body authorized with taking decisions on appointment of transfer of judges.

A little fact to be noted, is that, in the amendment of the constitution for NJAC, it was never mentioned who exactly is an “eminent” person or the definition of “eminent”. This became one of the major arguments in subsequent court dealings to prove the invalidity of the NJAC proposal.

However, before going down towards the complex path of court dealings and concerned argumentative notions raised, let us lay out what all we will discuss in this article.

This article will delve into the timeline of events that led to the development of NJAC proposal with a detailed analysis of what resulted in the strike down of the said amendment declaring the proposal as unconstitutional.

NJAC: How Did It Come Into Existence

In 1981, in the case of SP Gupta v. President of India & Ors.[3], which is also known as the “first judgement case”, the court held that the opinion of the chief justice of india is not binding for deciding upon the appointment of judges, thus allowing the legislature to have a say in the appointment process.

This case set the ball rolling, to pave the way for the primacy of Chief justice of India’s opinion, opening the floodgates for the many debates on the transparency of decisions taken by him, including the working of the “collegium system”. What is collegiums system and how did it come up?

In 1993, in the case of Supreme Court Advocates-on Record Association v. Union of India [4] case, popularly known as the “2nd judgment case”, a bench headed by Justice J S Verma scrapped the earlier law which gave the executive the upper hand, and instead, said that primacy must be given to the judiciary to maintain its independence. The court held that “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

This case established the “Collegium System”, the present system authorized for appointment of judges. In the Collegium system, the chief Justice of India and four most senior judges of the Supreme Court decide upon the matters of appointment of Judges to higher judiciary.

“While the court already made it clear that the CJI would have the final say and that the President’s recommendation was non-binding, the court also expanded that appointments would be decided by the CJI and:-

  1. the two most-senior judges after the CJI in the SC when it comes to appointing SC judges;
  2. the two most senior judges of the respective HC when it comes to appointing judges to that particular HC.”[5]

After this establishment, for the next five years, confusion arose regarding the power of CJI in the committee. In 1998, in “the third judgment”, it was declared that the chief justice of India needs to take into consideration the views of a ‘plurality’ of judges before creating selections on appointments.  This was in response to a reference by the President in which the Supreme Court was asked to clarify whether the Chief Justice has to take the opinion of other judges, or if it is not necessary. It reaffirmed the 1993 judgement and expanded collegium to include four more senior judges after the CJI.

Where did the NJAC proposal come up between these events? In 2008. A report by the Law Commission of India sparked debates on whether this system of judge’s appointment was transparent enough, where the report discussed about how in other countries executive is solely authorized to appoint judges or they consult with the chief justice for taking decisions upon appointing judges. Saying that the second judges’ case had completely removed the role of the executive, it said, “It is time the original balance of power is restored.”[6]

Fast forward to august 2014, the government introduced the “National Judicial Appointments Commission Bill” in the Lok Sabha. According to this bill, the decades old collegiums system would be scrapped off and instead a commission which would include the parliament members will be formed which would be solely authorized for the role of appointing judges.

Passing through Rajya Sabha, the president gave his assent to the bill on Jan, 2015 along with 99th constitution amendment act which introduced article 124A, containing the guidelines for the establishment of NAJC.

After hundreds of debates and PIL’s being filed in the court, its validity was again verified in the supreme court, where finally on Oct 16, 2015, the proposal was considered unconstitutional.

Landmark Judgements

  • Kesavananda Bharati v. the State of Kerala.[7]

In this historic case, the “basic structure doctrine”, which says that “the Constitution has a basic structure of principles and values that cannot be altered by any Act of the legislature of the executive.”[8]

The verdict was received as curtailing of powers, by the then government headed by Indira Gandhi.

A series of unprecedented events followed after this case. One of them was appointment of Justice Ajit Nath Ray as CJI, when he wasn’t the senior most judge. This was made possible by superseding three senior-most judges, who were those that favored the doctrine. This was called as a blatant attack by the executive, on judicial independence.

Analysis

There is this perception that, while the collegiums fought for the existence of it’s system in the name of judicial independence, I failed to clear away the doubts of the public on the transparency of its appointing process lacking accountability and public scrutiny.

This has raised questionable fears on nepotism and promotion of judges based on personal relationships rather than merit and seniority.

Also, while the opaqueness of the collegium system was obvious, barely any effort could be seen to be put up by the legislative or the executive to work on an alternative.

The nearest this issue ever came to be addressed was the proposal of the NJAC Act. Yet, it didn’t took the supreme court more than an year to get it scrapped off.

With passing of the assent for the said bill, multiple arguments arose in favour as well as in against of NJAC Act.

  1. Is the NJAC act unconstitutional?

Arguments for:

  • “The NJAC Act was introduced with the amendment of the constitution there by making the collegiums system created after the 2nd judgement irrelevant because the constitution is now different from what it used to be.”[9]
  • “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 NJAC’s chairperson is the CJI, who has an important role to play.”[10]
  • “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.”

Arguments Against:-

  •  “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.”

If the constitutional validity has to be regarded considering the first arguments laid down in both for and against case, then it can be seen that it has been pointed out that primacy of the CJI is a part of the basic structure of the constitution and that the new amendment act was violating it, however, it is also to be noted that under the NJAC Act, the CJI still remains as the head or in exact terms, “the chair person”, therefore , in no way the 99th amendment act is violating the basic structure of the democracy considering the fact the CJI still holds the higher position in the commission and while it’s primacy may have been compromised to certain extents, it certainly didn’t completely eliminate the primacy of the CJI.

The argument that no organ of the state should enjoy absolute freedom also holds a strong opinion because, under the collegiums system after the 2nd judgment, even the president was bound to the decisions of the CJI and there lacked a efficient system of checks, which could be seen addressed in the NJAC Act, albeit with many loopholes, but the same could have been gone through further observations and modifications to put an efficient check on power of the CJI.

  • Is Separation of powers justified and balanced under the NJAC act?

Arguments for:-

  • “Article 124 C gives Parliament powers to govern the functioning of the NJAC by making ordinary laws in the future. 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.”
  • “Even with the separation of powers, it is considered normal to redistribute the powers in favor of one of the pillars of democracy from the other.”
  • “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.”

Arguments against :-

  • “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.”

Coming to the separation of powers, while it’s true that allowing parliament to modify and propose changes to laws does allow the legislature with a slate of controlling power, however, the argument that normal legislative power of parliament for judiciary will lead to elected dictatorship by parliament comes off as an exaggeration overlooking the propose of the legislative functions.

The parliament does not consist of limited single-digit amount of members. It is a vast decision making body in itself consisting of political leaders from different parties, people from different communities and has a well balanced system of checks where before passing of even the smallest laws, it goes through a series of assent giving process. Parliament is simply too big of a diverse but well established system to establish dictatorship.

However, the separation of powers among the legislative, executive and judiciary does appear imbalanced with the NJAC Act, giving a controlling hand to the legislative over judiciary, when judiciary was supposed to act as an independent body. This issue could have been resolved with more examination and modifications of the amendment act by allowing a efficient method of keeping checks on the functional boundaries of both the constitutional branches i.e Legislative and Judiciary. In fact, allowing a constitutional body full independence can actually put the concept of democracy at risk.

Arguments were also raised regarding the inclusion of “eminent persons” in the NJAC according to Article 124 A of the amendment act, who would be nominated by a committee of the Prime Minister, the CJI and the leader of the opposition or the single-largest opposition party in the Lok Sabha. One of the eminent persons must be a woman or someone belonging to a scheduled caste, scheduled tribe, other backward classes or another defined minority.

The positive reasons claimed in support of this was, eminent persons would increase the confidence in the judiciary as their presence would ensure that the judges remain sensitive to the people’s interests. Also, they would increase diversity in the NJAC and act as checks against arbitrary power by any member of the NJAC.

While the positive contention sounds all good and simple with moral viewpoints, one can’t help but wonder what is the criteria of the selection of these so called “eminent persons”. Do they have prior knowledge of judiciary? Will they be selected from the political field or the common mass? It was never clarified. One argument was also raised calling out the risk of independence of judiciary if these eminent persons have vested interests in the executive and hence can shoot down nomination of any candidate.

All these raised questionable viewpoints are valid and if this could have been answered along with the amendment proposal, maybe the scrapping off wouldn’t have been that easy.

Above all those contentions raised, the lack of transparency and the glorification running of the collegiums system behind closed doors is a matter of worry, although many changes were made after the re-establishment of collegiums system, efforts need to be undertaken to improve a system of checks so that accountability could be held.

Conclusion

To conclude, it can be said that the NJAC when compared against the collegiums system, definitely appears a step ahead when addressing judicial accountability, however, the loopholes in the proposed NJAC act needs to be addressed if a system like that is ever going to be introduced in the future,

At the end, no matter how many debates on separation of power occurs, it can’t be ignored that the judiciary is one of the most important branch of constitutional bodies because if anything can fight the law, it is the judiciary.

No system can be perfect, but, obvious lacks in a system could be addressed. Since the NJAC is scrapped of now, but its purpose of introducing efficient judicial accountability could still be fulfilled. Amendments in the collegium system which can open the closed door behind which the promotion of judges occurs can be opened, so that instead of the executive or legislature, the people can be a part of checks and keep an eye on the short comings of such an esteemed constitutional body and maintain the trust over law and order.


[1] Dr. Anurag Deep & Shambhavi Mishra, JUDICIAL APPOINTMENTS IN INDIA AND THE NJAC JUDGEMENT: FORMAL VICTORY OR REAL DEFEAT, 3 Jamia Law Journal 49 (2018).

[2] commission – Dictionary Definition, Vocabulary.com, https://www.vocabulary.com/dictionary/commission (last visited Jun 23, 2021).

[3]S.P. Gupta v. President of India And Ors., A.I.R. 1982 S.C. 149 (India)

[4] Supreme Court Advocates-on Record Association v. Union of India, A.I.R. 1994 S.C. 868

[5] Sudhanva Shetty, The Three Judges Cases: How Three Judgments Made The Modern Indian Judiciary Thelogicalindian.com (2018), https://thelogicalindian.com/story-feed/awareness/collegium/ (last visited Jun 23, 2021).

[6] SC strikes down NJAC: A short timeline of the controversial law for appointment of judges-India News, Firstpost (2015), https://www.firstpost.com/india/sc-strikes-down-njac-a-look-back-at-key-developments-leading-up-to-the-judgment-2471014.html (last visited Jun 23, 2021).

[7] Kesavananda Bharati v. the State of Kerala, A.I.R. 1973 S.C. 1461

[8] Sudhanva Shetty, The Three Judges Cases: How Three Judgments Made The Modern Indian Judiciary Thelogicalindian.com (2018), https://thelogicalindian.com/story-feed/awareness/collegium/ (last visited Jun 23, 2021).

[9] Harleen Kaur, All you need to know about NJAC, livemint (2015), https://www.livemint.com/Politics/rcsu24yGQ0frdanyQ9fVVL/All-you-need-to-know-about-NJAC.html (last visited Jun 23, 2021).

[10] Id. At 10


Author: Gargi Gouri from NLUO, Odisha.


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