Collegium System and NJAC-UPSC

In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, which the executive considers it as “the will of people”.
The seven-year-old verdict has been invoked by both sides-
- Supreme Court has asked if the government’s “unhappiness” over the failure of the NJAC was why it was sitting on the names recommended by the Supreme Court Collegium.
- On the other hand, Law Minister has commented on public for a about how the NJAC could have provided a transparent alternative to the decades-old Collegium System of appointing judges.

How are Judges to Higher Judiciary appointed?

Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country.

The Supreme Court has offered diverse meanings of the phrase “consultation”

For appointment of Chief Justice of India (CJI): In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s. President appoints CJI.
- The Union Law Minister would, at an “appropriate time”, seek the recommendation of the outgoing CJI on his successor.
- Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister who would advise the President on the appointment.
In the case of appointment of a judge other than Chief justice, consultation with the Chief Justice is obligatory. The interpretation of the word consultation has evolved over the years which can be summarised as follows:

First Judges Case, 1981

The Supreme Court in the First Judges Case, 1981 ruled that the word “Consultation” could not be interpreted to mean “concurrence” = CJI’s opinion is not binding on the executive.
The Executive could depart from the CJI’s opinion only in exceptional situations and any such decision could be subject to judicial review.

Second Judges Case, 1993

The SC in Second Judges Case, 1993 overruled its earlier decisions.
It now held that Consultation meant concurrence and that the CJI’s opinion enjoys supremacy = binding on the executive.
This decision was justified by the court claiming that the CJI could be the best option to know and assess the worth of candidates.
However, the CJI has to formulate the opinion only via a body of senior judges that the court described as the ‘collegium’.

Third Judges Case, 1998

The SC in the third judges case, 1998 clarified that the collegium would consist of
- CJI and 4 senior-most judges in case of appointments to the Supreme Court.
- CJI and 2 senior-most judges in case of appointments to the High Court.

About Three Judges Cases (not third)

Three Judges Cases = First Judges Case 1981 + Second Judges Case 1993 + Third Judges case 1998.
Over the course of these 3 cases, the court evolved the principle of judicial independence.
This meant that no other branch of the state (legislature and executive) can interfere with the appointment of judges.
It is with this principle in mind that the SC introduced the collegium system.

Therefore:

The collegium system appoints higher judiciary judges; government role is post-collegium decision.
Government conducts IB inquiry for lawyer-to-judge elevation, can raise objections, but must appoint reiterated names.
Legal basis: three ‘Judges Cases’ Supreme Court judgments, not in Constitution but significant.
Collegium system arose due to judiciary-executive friction, aggravated by court-packing, transfers, and supersessions in the 1970s.

What were the criticisms of Collegium system?

Unconstitutional and autocratic: ‘Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself.
Undemocratic: Selection of judges by collegium is undemocratic since judges are not elected by the people and are not accountable to the people or to anyone else.
Non-transparency and opaque: (No official procedure for selection + lack of a written manual for functioning + selective publication of records of meetings+ no eligibility criteria of judges) = bring opacity in collegium’s functioning.
Promotes nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus it encourages mediocrity in the judiciary by excluding talented ones.
Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
Ignores SC’s own guidelines: The recent supersession in appointment is inconsistent with the view of the Supreme Court in the Second Judge’s case, 1993, where it laid that:
- Consider seniority for High Court Judge appointments to the Supreme Court, both within High Courts and nationwide.
- Deviate only with strong reason; maintain seniority order in Supreme Court appointments, if possible.
Against established conventions: The ‘seniority’ convention, a procedure for appointments, is disrupted by ‘supersession,’ allowing bias and subjectivity in appointments.
No reforms were made after the fourth judges case: Post-NJAC rejection, court didn’t amend the Act or add safeguards for constitutionality; returned to Collegium system.

What was the NJAC? How did it differ from the collegium system?

In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
- Parliament unanimously passed the bills, and the required number of State legislatures ratified them as well.
This commission was intended to replace the collegium system that was in place since the Second Judges Case. NJAC was established to achieve greater transparency and accountability for the appointment of judges.
NJAC would have been responsible for the recruitment, appointment and transfer of Judges of Higher Judiciary
Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124.
- Article 124 A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system
- Article 124 B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts
- Article 124 C accorded express authority to Parliament to make laws regulating the the NJAC’s functioning.
It consist of six people:
- Chief Justice of India
- Two most senior judges of the Supreme Court
- Law Minister
- Two ‘eminent persons’. A committee comprising the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha nominates these eminent individuals for a non-renewable three-year term.
The NJAC was established by amending the Constitution [99th amendment Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment.
The Lok Sabha has seen the resurgence of a demand to introduce the National Judicial Appointments Commission.
The NJAC was supposed to base its recommendations for the Chief Justice of India and high court Chief Justices on seniority, while suggesting SC and HC judges based on ability, merit, and “other criteria specified in regulations.”
The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.

Why was the NJAC challenged in court?

Before NJAC law and 99th Amendment, petitioners challenged their validity in 2014; Court deemed it “premature” to interrupt lawmaking.
In 2015, Supreme Court Advocates-on-Record Association (SCAORA) challenged the new laws’ provisions.
NJAC never operated, former CJI didn’t participate due to court challenge.
SCAORA argued both Acts were “unconstitutional” and damaged Chief Justice’s primacy.
It linked to Second Judges Case, emphasizing safeguarding the primacy.
The independence of judiciary is from separation of powers in Article 50.
“Basic structure” doctrine stems from Kesavananda Bharati judgement (1973), protecting Constitution’s core.
SCAORA deemed NJAC Act “void” and “ultra vires” due to timing and lack of Presidential assent.

What were the arguments between the Centre and the Supreme Court?

Union government argued Second Judges case wasn’t valid for NJAC due to changed circumstances.
Government said 1993 interpretation of “consultation” didn’t apply; NJAC’s new text made it irrelevant.
Centre claimed NJAC didn’t diminish judiciary’s primacy; countered by comparing NJAC and collegium’s composition.
It believed Amendment strengthened judiciary’s independence, democracy, Checks and balance.
Government criticized collegium’s “intra-dependence,” called NJAC an experimental chance.
On Oct 16, 2015, 4 : 1 majority bench ruled NJAC “unconstitutional” and against Constitution’s basic structure.
Majority emphasized judiciary’s insulation from political-executive, safeguarding citizens’ rights.
Dissenter Justice Chelameshwar noted collegium’s opacity, supported government’s “checks and balances” stance.
Bench acknowledged collegium flaws, urged government to improve judicial appointments system.

What happened to the bid to reform the collegium?

A Memorandum of Procedure (MoP), issued in 1947 and updated in 1999, governs the appointment of the CJI and apex court judges.
The court told the Centre in 2015 to come up with a new MoP in order to make the collegium’s proceedings transparent.
This exercise, however, resulted in a year-long deadlock between the executive and the judiciary, over some clauses of the MoP.
In 2017, the government finalized the MoP but didn’t adopt it, stating a reconsideration of the issue.

Way Forward

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Collegium System and NJAC-UPSC, Collegium System and NJAC-UPSC, Collegium System and NJAC-UPSC, Collegium System and NJAC-UPSC, Collegium System and NJAC-UPSC