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NJAC v Collegium: which one is a lesser evil

Abhishek Rao (21LLM.04)

National Law University, Delhi

Course Name: Research Methods and Legal Writing

Instructor Name: Prof. Jeet Singh Mann

Due Date: 21 Nov. 2021

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INTRODUCTION

The Constitution of India which is the fundamental law of the land has laid down provisions for the

establishment of the Supreme Court and High Courts as watchdog institutions with the sole objective to not

only deliver justice in the society but to make sure that the other two organs of State i.e. the Legislature and

Executive do not cross their authority and that they discharge their functions strictly in accordance with the

powers conferred upon them by the various provisions of the Constitution. In this manner, the judiciary has

played a very significant role in the interpretations of the various provisions of the Constitution as well as the

other enactments passed by the legislature from time to time. It may strike down an executive order, if it

violates the fundamental rights of the citizens or if it infringes any other law or the Constitution in any manner.

From the “Basic Structure Doctrine”1 to the “Natural Justice Principle”2, from Golak Nath3 to Kesavananda

Bharati, our judiciary has trodden a long way to act as a custodian of the Constitution rather than acting as a

mere adjudicating institution. It is clear from a catena of cases 4 that our judiciary has saved democracy due to

its absolute independence within the framework of the constitution. Over time, judicial activism and judicial

review have also been brought within the ambit of basic structure doctrine. The judiciary became so powerful

that it also assumed the powers of making appointments to the Supreme Court and High Courts themselves by

creating collegiums systems in Supreme Court and High Courts through judicial verdicts given from time to

time and thus it can be said that now it is self-perpetuating oligarchy. There does not exist any effective

mechanism for making appointments of judges to the higher judiciary. There is no transparency in the

appointment process and thus there is an urgent need to enact some effective enactment to make it accountable

without touching its independence in any manner.

The Parliament tried to change the selection procedure of the judges in the higher judiciary by bringing in

National Judicial Appointments Commission Act, 20145 (NJAC Act) but it was struck down by the Supreme

Court as unconstitutional.6 The NJAC Act is a remedy worse than the disease. In the garb of bringing

1
Kesavananda Bharati v State of Kerala A.I.R 1973 S.C. 1461
2
Propounded in Maneka Gandhi v Union of India (1978) 1 S.C.C. 248
3
Golak Nath v State of Punjab A.I.R. 1967 S.C. 1461
4
Minerva Mills v Union of India 1980 S.C.C (3) 625; Kesavananda Bharati v State of Kerala AIR 1973 SC1461; Maneka Gandhi v
Union of India (1978) 1 SCC 248
5
No. 40 of 2014
6
Supreme Court Advocates-on-Record Association v Union of India, (2016) 4 SCC 1
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transparency in higher judicial appointments, it tried to undermine judicial independence by involving the

executive in the judicial appointments. There is a need to bring transparency in the present collegium system of

appointment of judges but it has to be within the parameters of judicial independence.

Even the Bench in the NJAC case7 admitted that the present collegium system is not perfect and there is a need

to reform it. Justice Kehar8 observed that “Help us improve and better the system. You see the mind is a

wonderful instrument. The variance of opinions when different minds and interests meet or collide is

wonderful.”

The paper aims to address the tussle between the judiciary and the executive regarding the appointment of

judges to the higher judiciary. The researcher aims to comprehensively analyse the various issues plaguing the

collegium system and why NJAC can’t be a better alternative to the collegium system despite its many

shortcomings? In addition, the researcher aims to show the way forward by suggesting improvements in the

present collegium system.

REVIEW OF LITERATURE

The present review of literature analyses the study done by various researchers on judicial accountability,

judicial reforms, judicial appointments, separation of powers, judicial misconduct, and judicial activism.

1. Indira Jaising, “National Judicial Appointments Commission: A Critique”, Economic and Political

Weekly, Vol. 49, No. 35 (AUGUST 30, 2014), pp. 16-19, wherein she discusses the evolution of the

system of Judicial appointments since independence. She has elaborated the rationale behind the

introduction of the NJAC by the NDA Government. She pointed out the infirmities in the Act such as

there is no definition of the eminent person and the veto power enjoyed by the non-judicial members.

She also discusses the importance of an independent judiciary.

2. C Raj Kumar, “Future of Collegium System: Transforming Judicial Appointments for

Transparency”, Economic and Political Weekly, Vol. 50, No.48 (November 28, 2015), pp. 31-34,

7
Ibid
8
Krishnadas Rajagopal, “SC Bench strikes down NJAC Act as ‘unconstitutional and void’”, The Hindu, Oct. 15, 2015, last visited on
Nov. 15, 2021
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wherein he discusses the importance of self-reflection by the Judiciary regarding collegium system in

the wake of the NJAC Judgement. He discussed the need to bring transparency, diversity, competency,

and integrity in the appointment of Judges. He also highlighted the need for a separate permanent

institutional mechanism within the Supreme Court to deal with matters relating to the appointment of

the Judges.

3. Dr Anurag Deep and Shambhavi Mishra, “Judicial Appointments in India and the NJAC

Judgement: Formal Victory or Real defeat”, 3 Jamia Law Journal 49 (2018), wherein they discuss

the need to maintain equilibrium between Judicial independence and accountability. They suggested

ways to reform the collegium system such as the establishment of a complaint mechanism for the

collegium, demarcation of the eligibility of the judges, and withdrawing the primary administrative task

of collecting data about the potential candidates from the Judiciary.

4. Purush Purushothaman “Higher Judicial Appointments in India – The Dilemma and the Hope:

Trusting the Wisdom of the Generations”, NUALS L.J. Vol. 8, (September 10, 2012), 2014, wherein

he argues that the Constitution makers didn’t provide for the elaborate scheme of Judicial appointments

to protect judicial independence. Their main concern was to protect Judicial independence and to

eliminate executive arbitrariness. Also, they hoped that in future, the vague guidelines would be

converted into concrete guidelines keeping in mind the Constitution morality and conventions. Judicial

accountability and independence have to be balanced.

5. Arghya Sengupta, “Judicial Primary and the Basic Structure: A Legal Analysis of the NJAC

Judgement”, Economic and Political Weekly, Vol. 50, No. 48 (NOVEMBER 28, 2015), pp. 27-30,

wherein he argues that contrary to popular perception, in the NJAC Judgement, Judicial primary hasn’t

been held as a basic structure by the majority. He argues that the judgement in the NJAC case is per

incurium and analogous to the Golak Nath case9 and must be overruled.

Additionally, the researcher has examined various provisions relating to the appointment of Judges mentioned

in the Constitution of India, the National Judicial Appointments Commission Bill, 2014, various case-laws,

journals, legal blogs, periodicals and newspapers, etc.

9
Golak Nath v State of Punjab, AIR 1967 SC 1461
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RESEARCH PROBLEM AND QUESTIONS

There is a need to ensure accountability in the appointments in the higher judiciary without sacrificing Judicial

independence. The process of selecting Judges via collegium is opaque. There is a lack of objectivity in the

whole selection procedure. The detractors of the collegium system accuse it of being marred by nepotism and

lack of transparency. In the collegium system, a group of Judges select the judges. The collegium system must

adhere to the measures for transparency, diversity, accountability, adequate representation to the marginalised

sections of society. Transparency is not an anathema to independence but is an essential attribute of

independence. The Judiciary must address the various ills plaguing the collegium system. The people of India

have high hopes from the Judiciary and it has to conform itself to the high standards of probity, integrity and

transparency.

The following research questions have been taken into consideration to conduct the instant research and every

effort has been made to find out the possible answers to these important questions:

1. What are the issues plaguing the present collegium system of appointment of Judges in the higher

Judiciary?

2. What are the safeguards and measures needed to bring reforms in the present collegium system without

sacrificing Judicial independence?

3. Whether the complete exclusion of the executive in the Judicial appointments is justified to ensure

judicial independence?

4. Whether the executive should be included in the process of higher Judiciary appointments to ensure

checks and balances in the system?

5. Whether NJAC Act is a panacea for all the ills afflicting the collegium system or it is a bad idea and will

lead to the erosion of judicial independence?

6. What are the merits and demerits of the collegium system as well as the NJAC and which is a better

alternative of the two?

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7. What is the way forward and how to synthesise the two systems- NJAC and collegium, to bring

accountability in the appointments to the higher Judiciary while preserving judicial independence?

RESEARCH OBJECTIVES

1. To trace out the evolution of the present collegium system of appointment of Judges in higher Judiciary.

2. To examine the functioning of the present collegium system of the appointment of Judges.

3. To examine the effectiveness of the collegium system.

4. To critically analyse the present collegium system and the NJAC Act to add value to the existing

literature on the topic.

5. To list out the demerits of the collegium system.

6. To suggest reforms in the collegium system.

7. To do a thorough analysis of the NJAC Act.

8. To do a comparative analysis of the collegium system v NJAC Act.

9. To suggest a way forward by synthesising the two systems- collegium and NJAC Act.

10. To do quality research on the topic with the goal of value addition to the existing literature on the topic.

11. To do a comparative analysis of the Judicial systems across the world to better deal with the issues of

judicial independence and accountability.

RATIONALE OF RESEARCH

There is no perfect system of appointments in the higher Judiciary. Each system of appointments has merits and

demerits. The goal is to reform the present system to reduce opaqueness and bring transparency in the Judicial

appointments. The main aim is to reform the existing system of appointments while preserving Judicial

independence. The Existing Literature on the topic either supports the collegium system or the NJAC Act.

There is a need to harmonise both these systems to evolve a transparent appointments process to the higher

Judiciary. The concerns of the Executive must be addressed and be given due importance. For example, only
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the collegium should have the authority to choose names for consideration in the appointment of High Court

and Supreme Court justices. Then, a Judicial Appointments Commission shall review the nominations and

make recommendations to the President regarding the appointment of the most qualified candidates. This

approach will synthesise the two systems. The collegium system and the NJAC Act are not mutually exclusive

but there is a need to synthesise the two systems to ensure transparency and accountability in the Judicial

appointments.

RESEARCH HYPOTHESES

The proposed research shall deal with the following hypotheses:

1. The present collegium system of appointment of Judges in higher Judiciary is not infallible.

2. There is a need to bring reforms to the present collegium system.

3. Judicial independence can’t be sacrificed in the name of reforming the collegium system.

4. The NJAC Act is a serious blow to Judicial independence and it will lead to the hegemony of the

executive over the Judicial appointments.

5. There is a need to retain the present collegium system while reforming it to bring transparency and

accountability.

6. There is a need to ensure proper representation of the marginalised sections in the higher Judiciary.

7. The concerns of the executive regarding corruption and nepotism in the Judicial appointments need to

be addressed.

8. The Judiciary has to employ proper safeguards and measures to bring objectivity in the collegium

system.

9. Cooperation and not confrontation is the way forward to resolve the deadlock between the Judiciary and

the executive regarding appointments to the higher Judiciary.

10. The Supreme Court attempts to assert its supremacy while cloaking itself in the Constitution is

untenable as all the organs of the State have to work in tandem.

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UTILITY OF RESEARCH

The issue of Judicial appointments is a hot topic these days. There has been a tussle between the executive and

the Judiciary regarding higher Judiciary appointments. This research paper aims to harmonise the two opposing

points of view i.e. the collegium system and the NJAC to bring a constructive solution out of this debate. It

aims to suggest reforms in the appointment process of higher Judiciary within the contours of Judicial

independence. The research project will go a long way in adding meaningful substance to this debate. The

research will come in handy while introducing reforms in the collegium system.

SCHEME OF RESEARCH

The chapters are strictly in their order starting with the Introduction. It will comprise the rationale of the theme,

objectives, research question, hypothesis, the universe of study, research methodology and chapter scheme.

The second chapter deals with the review of existing literature on the topic. It would comprise all the major

works conducted at the national and international levels on this topic. The third chapter will provide a

comprehensive review of the evolution of the collegium system with loopholes in the collegium system. The

fourth chapter deals with the evolution of the NJAC Act with its structure, shortcomings and the reason behind

the quashing of this Act by the judiciary. The fifth chapter does a comparative analysis of various Judicial

systems across the world with special emphasis on their appointments process. The sixth and the final chapter

deals with the way forward with the concluding remarks by the researcher.

EXECUTION OF RESEARCH

RESEARCH DESIGN

RESEARCH UNIVERSE
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The researcher aims to study the concept of Judicial appointments in India since independence with a special

focus on the collegium system and the NJAC Act. Also, a thorough study of the major Judicial systems around

the world has been made to do a comparative analysis of the system of Judicial appointments across the world.

RESEARCH METHOD

As per the research requirements, the research has used doctrinal methodology. Also, a variety of approaches

such as descriptive, comparative, and historical have been used. This is a qualitative study rather than an

empirical study. So, the case study methods of various cases have been considered in the study.

DATA COLLECTION

The data is collected from various secondary sources like books, journals, commentaries, e-journals, internet

sources etc. Also, newspaper articles, international conventions, extant literature forums, debates have been

taken into account.

IMPACT OF THE RESEARCH ON PUBLIC POLICY

The present research has enormous relevance in the Indian context. An independent Judiciary is an essential

component of the Rule of Law. Judicial independence can’t be used as an excuse to stall positive reforms.

Judicial independence and accountability go hand in hand. The idea to co-opt the two opposing concepts i.e. the

collegium and the NJAC Act is a great idea. Co-operation and not confrontation is the way forward.

Comparative Jurisprudence can help us better deal with issues like judicial independence and accountability by

analysing the different Judicial systems across the globe. The researcher hopes that this research will contribute

significantly to the area of Judicial appointments. It will significantly aid the policymakers, researchers and

legislators on this topic. The goal of this research is to strengthen the Judiciary by constructive criticism. This

study is an attempt to find out the problems of appointments in the higher judiciary and provide suitable

solutions to it so that the integrity of the judicial system is maintained. This research paper will add to the
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existing inventory of knowledge available on this topic and will be a great attempt at value addition to the

existing topic. It will enhance the jurisprudential aspects of the need for reforms in the Judicial appointment

process in India.