The Prayas News Analysis
On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth
Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.
The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other
things, should be protected from executive control.
The justice system therefore caught in a tussle between the committee of Supreme Court justices and the
government over who has the final say on appointing judges. India’s 24 high courts should have 1091 judges.
However, as many as 470 positions are vacant. Many are not happy with the present collegium system. The two
decade old system of a collegium is an Indian innovation created in the name of judicial independence. However,
according to some critics, it has produced an opaque legal justice system.
Appointment of Judges in India: Current Scenario
The Supreme Court and High Court judges are appointed by the President on the recommendation
What is the Constitutional Provisions for appointment of judges?
The constitutional provisions related to their appointment are:
- Article 124 says the President should appoint Supreme Court judges after consultation with such judges
of High Courts and the Supreme Court as he/she may deem necessary. The Chief Justice of India is to be
consulted in all appointments barring his/her own.
- Article 217, which deals with the appointment of High Court judges, says the President should consult
the CJI, Governor, and Chief Justice of the High Court concerned.
what is the Collegium System for appointment of judges?
- The Chief Justice of India should consult a collegium of four senior most judges of Supreme Court for
appointment of judge to Supreme Court.
- In case of appointment of high court judge, the Chief Justice of India should consult the collegium of two
senior most judges of Supreme Court.
- In case of transfer of high court judge, the Chief Justice of India should consult collegium of four senior
most judges of Supreme Court.
How and when the Collegium System came into existence?
First Judges Case, 1981: The Supreme Court ruled that the recommendation made by the CJI to the Justice Ruma
Pal, former SC judge remarked that it is one of the best-kept secrets in the country. Justices J. Chelameswar and
Kurian Joseph, in their opinions, pointed out that the collegium system lacks “transparency, accountability and
2 Steps taken by government to reform judicial appointment
The government appointed the Justice M N Venkatachaliah Commission in 2000 to opine whether there was need to change the collegium system.
The commission opined in favour of change, and prescribed an National Judicial Appointment Commission
It has to be consisting of the CJI and two senior-most judges, the law minister, and an eminent person from the
public, to be chosen by the President in consultation with the CJI.
2 National Judicial Appointment Commission
- The government moved 99th Constitutional Amendment Bill to establish National Judicial Appointment
- It was envisaged as an independent commission to appoint and transfer judges of High Court and
appoint judges of Supreme Court of India.
- It was composed of three senior judges, two eminent outsiders and the Law Minister.
- The constitutional amendment was passed by Parliament and was ratified by 20 states.
- However, before it was notified, it was challenged in Supreme Court as an attempt by government to
interfere with the independence of the judiciary.
- The motive behind creation of NJAC was to bring reforms in appointment process of Indian higher judiciary
Why Supreme Court struck down NJAC?
- NJAC did “not provide an adequate representation, to the judicial component” and that new provision in
Constitution are insufficient to preserve the primacy of the judiciary in the matter of selection and
appointment of Judges”
- “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union
Minister in charge of Law and Justice as an ex officio Member of the NJAC.”
- The amendment impinged upon the principles of “independence of the judiciary”, as well as, the “separation
- The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held
ultra vires the provisions of the Constitution.
- On the other hand, the Supreme Court expressed its intention to find ways to improve the functioning of the
Implications of judgement
- The judgement has once again undermined the authority of Parliament to legislate on matters pertaining to
- Some legal experts have labelled the verdict as judicial activism by judiciary and manifestation of
conservative outlook when it comes to reforming its own institution
- With this verdict, the appointment shall continue through Collegium system. However, the judiciary is
seeking to bring reforms ensuring transparency and fair recruitment process
Why judicial appointments must remain the prerogative of the judiciary
- Government is major litigant: Since the government is a major litigant, giving it an edge in appointments
would amount to fixing the courts.
- Independence of Judiciary: It has been regarded as basic structure of constitution and NJAC was termed as
violating the independence of judiciary
- To enable Separation of Powers between executive and judiciary as directed by Constitution of India
Measures required to reform for Judicial appointment in India
- The entire appointment system needs to be opened up to the Right to Information (RTI) Act, so that any
citizen can seek and get information about the process through which a judge was appointed
- Vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are
functioning with half or one third the sanctioned strength
- The persons of doubtful integrity who might have been appointed by the mistake of the collegium have to
be weeded out. But methods like voluntary retirement could be an option.
- The “uncle judges” syndrome could be eliminated by not posting any judge in a High Court where his/her kin was practising.
- The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or
staff, if all the vacancies are filled.
- There needs to be appointment of ad hoc or additional judges to clear pending cases — the collegium is
generally reluctant to appoint retiring judges as ad hoc judges.
- The Supreme Court should lay down institutional mechanisms for transparent functioning of the collegium.
- The Collegium should accept applications for appointments as High Court judges. This is followed in the U.K. and can be adopted in India too.
- There must be full and complete disclosure of relationships and affiliations of applicants to sitting and
- Minimum eligibility criteria for consideration need to be laid down, including appearances in important
- All the three organs of the state should introspect as to why there has been no or inadequate representation
in the higher judiciary from amongst women.
- Provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present
practice of some judges seeking to be in the good books of the members of collegiums is avoided.
- A minimum tenure should be provided to the Chief Justice of India and the Chief Justice of High Courts.
- Court management should not be vested with Judicial Officers but assigned to trained managers.
- Permanent Commission may be constituted to scrutinize the credentials of candidates and recommend
names to collegium. These Permanent Commissions should also be enabled to scrutinize complaints of
dishonesty and lack of integrity of judges.
What are the shortfalls?
- The move is essential in terms of bringing transparency into a system that has been long been criticised for
- However, the recently released first set of publications implies that the actual functioning is far from its
- Notably, the details on the valid reasons behind the selection or rejection still lack clarity.
Also details on which of the judges reject the candidature is unrevealed.
- In case of lack of consensus, at times the majority views are being over-ridden even by decision one of the
judges in the collegium.
- These shortfalls seem to go against the objective of transparency and impartiality, and thus the system
needs further assessment.
- Meanwhile the centre should hasten its process of finalising the MoP on judicial appointments.
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