COMMENTARY

National Judicial
Appointments Commission
A Critique
Indira Jaising

An assessment of the new law

introduced to appoint judges
argues that it will make the
judiciary subservient to the
executive and thus throws a
fundamental challenge to the
Constitution and Indian
democracy. The long-pending
demands for transparency and
accountability of judges and for
making the judiciary more
representative have been
forgotten in these new bills.

[This article was written and edited prior to

the Supreme Courts refusal to hear the
petitions against the two bills discussed in
here ed.]
Indira Jaising (indirajaising@gmail.com) is a
senior lawyer of the Supreme Court and a
former Additional Solicitor General of India.

16

he National Judicial Appointments Commission (NJAC) Bill,

2014 and The Constitution (One
Hundred and Twenty First Amendment)
Bill, 2014 were introduced in the Lok
Sabha on 11 August 2014. Even before
the ink is dry on the two bills, petitions
have been filed in the Supreme Court
challenging their constitutionality on
the ground that they have violated the
basic structure of the Constitution. The
petition filed by the Supreme Court
Advocates-on-Record Association states
that Parliament does not have the power
to change the basic structure of the Constitution which it has done and hence
the government should be restrained
from sending the amendment bill to the
states for ratification. The NJAC Bill is
also challenged on the ground that
when it was introduced, Article 1241 and
Article 217 were in full force and effect
and no legislation can go contrary to the
Constitution. The two bills are therefore
a stillborn law, null and void.
The challenge is a rather unusual one,
inasmuch as for the first time a bill is
challenged before it has actually become
law. There was a similar challenge to the
bill creating Telangana before it became
a law and the Supreme Court rejected
the challenge on the ground that only a
law could be challenged and not a bill.
We need to see how this drama
unfolds in the Court, but for now, the
National Democratic Alliance (NDA) government has been seriously challenged
in the only institution that can entertain
such a challenge.
Ironically, during the United Progressive Alliance (UPA) regime, it was Arun
Jaitley who made the point that no law
could be made altering Article 124 of the
Constitution without a constitutional
amendment first being made but in
its haste to set up a commission, the
august 30, 2014

NDA seems to have forgotten this basic

proposition.
The petition challenging the constitutional amendment states that the two
bills destroy the separation of powers
and undermine the independence of the
judiciary. In plain language, this means
that the executive can determine the
composition of the judiciary, making it
an institution appointed by the executive. Given that in our system, laws
made by the executive can be challenged
in front of the judiciary, it is imperative
that judges are not dependent on the
executive for their appointment.
As of today, since the Constitution
Amendment Bill has not been ratified by
the requisite states, the Collegium continues to be the appointing body to fill
up vacancies that occur in the post of
judges in the Supreme Court and in the
high courts. If the two bills become law,
the prime minister will have appointed
21 judges of the Supreme Court by 2019,
when the next general election is due.
It is obvious that under the new dispensation, the government can veto the
appointment of judges they consider
unfriendly to them. It is in these
circumstances that the challenge is not
only important but fundamental to
our democracy.
The Background
Since 1950, judges have been appointed
by the government in consultation
with the Chief Justice of India (CJI). For
the first two decades, there was a near
consensus between the government of
the day and the CJI.
In 1981 the question arose whether
Consultation referred to in Articles 124(2)
and 217(1) with the CJI meant concurrence in which case the recommendations of the judiciary would be binding
on the government. In the S P Gupta
case decided in 1981, the Court held by a
majority that the recommendations of
the CJI were not binding on the government. Once this decision was rendered
the government obtained a licence to
disregard the recommendations of the
judiciary. While this was a literal interpretation of the word consultation, it
had devastating political consequences.
It appears the recommendation made by
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the CJI were not accepted as an invariable rule; change was on the cards.
The prime initiators for change in the
method of appointment of judges have
always been the lawyers. In hindsight it
seems almost logical since it is they who
end up as chief justices of the high courts
and of the Supreme Court. Judges of
these courts are invariably sons of
former judges or sons of lawyers practising at the bar. The debate on who should
appoint judges has never really being
thrown open to the public and we as a
country do not have an articulated position on this issue. In Court we are confronted with a binary position, either
independence of the judiciary or executive control. This process of reasoning
is inherent to the legal method and
no nuances are allowed to emerge nor
options considered.
In 1993, once again, the issue was taken
to the Supreme Court and the judgment
in the S P Gupta case was overruled.2
This time a bench of nine judges held
that a collegiate opinion of a collective of
judges is binding on the government.
The majority gave the following conclusions regarding appointments:
(1) All the constitutional functionaries must
perform this duty collectively with a view to
reach an agreed decision so that the occasion
of primacy does not arise.
(2) In case of Supreme Court the proposal
is to be initiated by the CJI and in the case
of a high court by the chief justice of that
high court.
(3) In the event of conflict of opinion the
view of the CJI has primacy.
(4) No appointment of any judge to the
Supreme Court or any high court can be
made unless it is in conformity with the
opinion of the CJI.
(5) In exceptional cases, for stated strong
and cogent reasons, disclosed to the CJI,
indicating that the recommendation is not
suitable for appointment, the appointment
recommended by the CJI may not be made.
But in case the CJI reiterates his recommendation then, the appointment should be made
in accordance with his recommendation.
(6) The senior-most judge of the Supreme
Court should be appointed as CJI, if considered fit to hold the office.

The judgment established the primacy

of the judiciary in the matter of making
appointments.
It appears that the collective of judges
was not able to take decisions in the
spirit of a collegium and this led to a
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august 30, 2014

presidential reference under Article 143

to the Supreme Court for an advisory
opinion on the appointment of judges,
the method relating to the consultation
between the CJI and his brother judges
in the matter of appointment of judges,
and the relevance of seniority in appointing the chief justice and the other judges.
The Supreme Court rendered an opinion reiterating that the CJI has plenary
powers in the consultative process. The
nine judges bench opined;
(1) The opinion of the CJI, having primacy
in the consultative process and reflecting
the opinion of judiciary, has to be formed on
the basis of consultation with the collegium,
comprising of the CJI and the four senior
most Supreme Court judges. The judge, who
is to succeed the CJI should also be included,
if he is not one of the four senior most judges. Their views should be in writing.
(2) Views of the senior most judges of the
Supreme Court, who hail from the high
courts where the person to be recommended
are functioning as judges, if not part of the
collegium, must be obtained in writing.
(3) The recommendation of the collegium
along with the views of its members and that
of the senior most judges of the Supreme
Court who hail from the high court where
the persons to be recommended are functioning as judges should be conveyed by the
CJI to the Government of India.
(4) The substance of the views of the others consulted by the Chief Justice of India or
on his behalf, particularly those of non-judges
(members of the Bar). Should be stated in the
memorandum and be conveyed to the Government of India.
(5) Normally, the collegium should make its
recommendation on the basis of consensus
but in case of difference of opinion no one
should be appointed, if the CJI dissents.
(6) If two or more members of the collegium
dissent, the CJI should not persist with the
recommendation.
(7) In case of a non-appointment of the person recommended, the materials and information conveyed by the Government of India,
must be placed before the original collegium
or the reconstituted one, if so, to consider
whether the recommendation should be
withdrawn or reiterated. It is only if it unanimously reiterated that the appointment must
be made.
(8) The CJI may, in his discretion, bring to
the knowledge of the person recommended
the reasons disclosed by the Government of
India for his non-appointment and ask for
his response thereto, which, if made, be considered by the collegium before withdrawing or reiterating the recommendation.

It is worthy of mention that the previous NDA government was in power at

vol xlIX no 35

that time when the reference was made

and the then Attorney General for India
appeared in the case and argued that
the primacy of the chief justice over the
execution must be maintained. This is
where the law stood when these two
bills were introduced.
Present Context of NJAC
Much water has flown under the bridge
since 1998. The country has seen several
political changes. Our understanding of
the meaning and content of democracy
has evolved. One such development has
been the introduction of the Right to
Information Act. Although as of today,
this Act does not apply to the judiciary,
yet it has contributed to expectations being raised among the general public that
there will be transparency in the functioning of the judiciary. It is also very
clear that in the last few decades, that
the functions of the judges have vastly
expanded, with significant impact on
government and citizens alike. While on
the one hand freedom of information
and good governance became the major
demands of the 21st century, the functioning of the judiciary continued to be
shrouded in mystery and secrecy. The
rule of seniority ensured that judges
could rise up the ladder with no special
attention being paid to merit. Moreover,
the appointment of a judge could be manipulated to ensure that a particular
person becomes CJI, simply by being
appointed judge as a younger person.
Women, scheduled castes, scheduled
tribes and religious minorities continued to be, by and large, excluded from
the judiciary. In 1991 this author made
the first-ever demand for an investigation into allegations of corruption
against a sitting judge of the Supreme
Court in recent times and the then CJI
publicly announced that since there was
prima facie material available against
him, no work will be assigned to him.
These, and other related developments,
led to the judiciary coming under the
public gaze and questions started being
raised about how and why certain
persons were appointed to the courts
and others excluded.
Together these factors led to a growing popular demand for a change in the
17

COMMENTARY

manner and method of the appointment

of judges; and this demand could not
any longer be ignored.
The UPA government introduced a bill
in 2013 for the appointment of a judicial
commission. It is unclear whether this
bill was introduced in response to the
popular demand for transparency or
whether it was introduced as the government perceived the judiciary to be
overstepping its limits. What is clear,
however, is that there was no provision
for transparency in that bill, nor any
provision for public participation in being able to give inputs on who could be
fit for appointment. The bills lapsed with
the dissolution of the 15th Lok Sabha
earlier this year.
It is in these circumstances that the
NDA has introduced the current bills. In
popular perception the bill could have
been introduced due to this long-standing demand and it would not be difficult
to convince the public at large that the
existing system needed change. Union
Law Minister Ravi Shankar Prasad never tires of stating that the bills fulfil a
24-year-old demand. This contention is
far from true. The long-standing demand has been for transparency and
public participation, greater representation for women, minorities, scheduled
castes and scheduled tribes. The bills
introduced in Parliament do not address
any of these.
Those of us who supported the demand for change find ourselves unable
to support the NJAC Bill in its current
form. The Commission is composed of
the CJI, two senior-most judges of the
Supreme Court, the law minister and
two eminent persons, to be selected by a
selection committee consisting of the
prime minister, the CJI, leader of the
opposition in the Lok Sabha or where no
leader of opposition, the leader of the
largest single opposition party.
Grave Infirmities
There is no definition of who is an eminent person. If past experience is anything to go by, these could be lawyers or
former judges. It is the function of this
commission to recommend judges for
appointment to the Supreme Court and
the high courts.
18

The bill amending Section 124B of the

Constitution states, among other things,
that one of the criteria for being recommended as a judge is that a person must
be of ability and integrity. There is no
system in place for judging ability and
the bill does not define it either.
Most importantly, if any two members
of the Commission do not agree with a
particular recommendation, the person
cannot be appointed. Section 5 of the bill
states, Provided further that the Commission shall not recommend a person
for appointment if any two members of
the Commission do not agree for such
recommendation.
This provision effectively gives to the
executive a veto over the nomination
made by the judiciary, as the law minister and one of the eminent persons can
stop the appointment of a judge. The criteria for appointment of a judge is ability, merit, or any other criteria specified
by regulations. Notoriously, it is the criteria of merit that has always kept out
underprivileged sections of society, with
no godfather, from being appointed to
public service. It is only a provision for
affirmative action that can correct this
imbalance of representation in public
service. There is no provision in the bill
nor a statement of intent, mandating
the Commission to ensure due representation of minorities, women, the scheduled castes and scheduled tribes in the
judiciary.
The bill gives the Commission the
power to supersede the senior-most judge
for appointment as the chief justice on
grounds of lack of merit or ability. In the
absence of any methodology for judging
ability and merit, this provision could
end up packing the judiciary with
friendly judges. Integrity is a necessary requirement for a judge, yet there
in no binding code of conduct for a
judge, nor a complaints procedure in
place. The UPA had introduced a Judicial
Standards and Accountability Bill, but
the current NDA government has made
no attempt to introduce any such bill.
Section 7 of the bill, as introduced in
Parliament required the appointment to
be made only if the recommendation
was unanimous. This meant that the
law minister alone could hold up an
august 30, 2014

appointment. The Congress objected to

this provision after which it was dropped
from the bill.
The provisions of the NJAC Bill, 2014
should leave no one in doubt that there
is every possibility of the government
appointing friendly judges destroying
the independence of the judiciary. By
2019 we may well have a Supreme Court
friendly to the ruling party and whose
judges have been dependent on the
executive for their appointment.
Given the majority the ruling Bharatiya
Janata Party enjoys in Parliament effective opposition to the laws and policies of
the government will come primarily from
outside Parliament, i e, from civil society.
Seeds of Authoritarianism
The judiciary which is supposed to be
independent of the executive is the only
institution to which we can turn to
question anti-people laws. To give just
one example, the move to amend labour
laws to take factories with less than 40
workers out of the ambit of the Factories
Act will deprive workers there of health
and safety benefits and is bound to be
challenged. At such times, it is critical
to have judges who think independently.
If the very independence of the judiciary is compromised we will be living
under nothing short of a one party
authoritarian State.
It is for this reason that even fellow
travellers of the NDA government have
not only opposed these bills in strong
terms but also challenged them in Court.
Those of us who supported the idea of an
independent Commission, find ourselves
in a bind, not wanting a return to the
collegium and not wanting these bills.
The current controversy has serious
consequences for what we understand to
be constitutional governance and the

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COMMENTARY

basic features of the Constitution. There

can hardly be any doubt that regardless
of which government is in power, the
judiciary has to be representative of
the aspirations of the people of this
country, rather than of the ideology of
the ruling party.
Perhaps the issue itself independence
versus executive control is falsely
posed. There are other issues which are
of great moment. What does one understand by independence of the judiciary; does it mean that the person has no
political affiliations;, how are these to be
known, by party membership or ideology? But then, how does one discover
the ideology of the judge? If a judge is
being appointed from the high court, are
his/her judgments scrutinised for commitment to constitutional values? What
is the process by which they are appointed; who appoints them and is there
transparency in the matter of appointments? These critical questions remain
unanswered. The even more important,
the question of the accountability of
judges remains unaddressed.

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What was needed was public participation in the matter of appointment of

judges and equal opportunity to become
a judge. The system of nominations by
the executive or the judiciary must be
put an end to, instead, those who consider themselves eligible must be permitted to send an expression of interest
making it possible for that persons antecedents to be evaluated. If the government of the day wanted to have the last
word in the appointment of judges, they
could have chosen the path of confirmation by Parliament with a full debate on
the ideology of the nominee in Parliament. Only such a method would give
legitimacy to political appointments. If
on the other hand, the appointments are
to be made by the judiciary we cannot
go back to the collegium, we need transparency and equal opportunity.
The two bills in question fall between
the cracks, perhaps consciously, making
the appointment process political without
the necessary safeguard of having the
nominee publicly articulate his/her
views on all constitutional issues. What

vol xlIX no 35

is even more dangerous is that this

is done without any means of holding
judges accountable.
What happens in the Supreme Court
will change the course of the history of
the nation.
Notes
1

Article 124. Establishment and constitution of

Supreme Court:
(1) There shall be a Supreme Court of India
consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number,
of not more than seven other judges.
(2) Every Judge of the Supreme Court shall be
appointed by the President by warrant under
the 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 purposes 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:
Provided further that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
a Judge may be removed from his office in the
manner provided in clause (4).
SC Advocates-on-Record Association vs Union of
India, (1993) 4 SCC 441: AIR 1994 SC 268-9
Judges.

19