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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PROJECT OF POLITICAL SCIENCE

“POLITICAL PERSPECTIVE OF CONSTITUTIONAL AMENDMENT IN


INDIA: NATIONAL JUDICIAL APPOINTMENT COMMISSION”

4TH SEMESTER

SUBMITTED BY – SIDDHARTH SINGH RAJPUROHIT

SUBMITTED TO –Mr. SAURAV SARMAH

ROLL NUMBER - 17003

SECION- A

GROUP 1

30.03.19

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TABLE OF CONTENTS

CHAPTER 1 ....................................................................................................................... 3

INTRODUCTION .............................................................................................................. 3

CHAPTER 2 ........................................................................................................................... 5

THE 99th CONSTITUTIONAL AMENDMENT: NATIONAL JUDICIAL


APPOINTMENT COMMISSION .................................................................................. 5

2.1. Background ........................................................................................................... 5

2.2. Evolution of NJAC ............................................................................................... 6

2.3. Working of NJAC ................................................................................................. 8

CHAPTER 3 ..................................................................................................................... 10

THE AILING COLLEGIUM AND THE NEED FOR NJAC.......................................... 10

3.1. NJAC: The Cure for the Ailment? ...................................................................... 10

3.2. NJAC Declared Unconstitutional ....................................................................... 12

CHAPTER 4 ..................................................................................................................... 14

ANALYSIS: - POLITICAL PERSPECTIVE: HOW WAS THE NJAC BETTER THAN


THE COLLEGIUM SYSTEM? .................................................................................... 14

CHAPTER 5 ..................................................................................................................... 16

CONCLUSION ................................................................................................................. 16

REFERENCES ................................................................................................................. 18

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CHAPTER 1

INTRODUCTION

Amendment is an alteration or addition made to the statute, legislative bill or constitution


in the course of their passage through a legislature. Amendment to the constitution can
change the fundamentals of governing institutions or political system of a country.

Article 368 of the Part XX of the Indian Constitution deals with the amendment of the
Constitution and states about the powers of the Parliament to amend the constitution. This
article provides special methods for the amendment to the constitution, i.e., is by either
amendment by 2/3rd majority of Parliament, amendment by 2/3rd majority of the
parliament plus ratification by at least half of the several state legislatures and the
additional amendment making by a simple majority in two houses of the Parliament. 1

The law of any nation is established on its constitution and it shapes its base. The socio –
political and financial state of any nation are in a transition and are supplanted by
ordinary new thoughts. So there is a need to correct the constitution to be parri passu
with developing and evolving society. The Constituent get together and Constitution
producers of India were completely mindful of this squeezing need and they thought of
this arrangement as thoughts given by a nation's constitution might be obsolete to
consistently advancing society with another age. So it ends up quintessential that there is
a procedure by which constitution can be changed for the general population of a country
for a greater good. So, they laid down a flexible as well as a rigid method amendment
method in respect of its some parts.2

In a developing country like India, the constitution is a tool of social-political change and
that’s why it has undergone frequent changes. The amendment process can be said that it
is the best possible method of amendment and strikes a good balance. The Amendment
provision stands justified due to necessity for the India’s pluralist society and developing
polity.

1
Chand, Bool. “Amending Process Of The Indian Constitution,” The Indian Journal of Political Science,
vol. 2, no. 1, 1940, pp. 28–40. JSTOR, www.jstor.org/stable/42742975, Articles and Reports:
2
Arun Soni, “Amendment of Indian Constitution Article 368”,http://www.legalserviceindia.com/article/l70-
Article368.html.

3
Examples of major amendments are - 42nd Amendment Act (1976) – by this fundamental
duties were prescribed. It is also known as “mini-Constitution” and it is due to the 42nd
Amendment to the Constitution of India that it inserted the words Socialist and Secular;
52nd Amendment (1985) – it lead to defection to another party after election illegal; 61st
Amendment (1989) - age of voting reduced from 21 to 18; 73rd and 74th Amendment
(1993) – introduction of Panchayati Raj and Municipalities; 101st Amendment (2016) –
lead to the introduction of GST.

I will be dealing with the 99th Constitutional Amendment relating to National Judicial
Appointment Commission. I will be dealing with the background and evolution of NJAC
and its working and functions. I will also be dealing with the issue of collegium vs.
commission and ailing collegium and how court invalidated the NJAC. I will be
analysing the political perspective of act and conclude it with my own thoughts. I have
relied on secondary research methodology and took help of books and web resources.

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CHAPTER 2

THE 99TH CONSTITUTIONAL AMENDMENT: NATIONAL JUDICIAL


APPOINTMENT COMMISSION

The “NJAC Act”, 2014 which had received the Presidential assent on 31st December,
2014 along with the 121st Amendment Act, 2014 and had been notified in official gazette
on 13th April 2014. The appointment mechanisms of judges provided for in these Acts
have remained a subject of big controversy since their commencement. The 121st
Constitutional amendment has led to addition of Article 124-A to the Indian Constitution
which provides for the National Judicial Appointments Commission.

2.1. Background

The appointments of judges prior to the NJAC were made by the President in
consultation with the CJI and the other senior judges and the transfers were made by the
President in consultation with the CJI. But it wasn’t as such provided specifically
anywhere. It was an unsaid norm of seniority which has been always followed for
appointing and elevating judges.

However on August, 1969, controversy regarding elevation of Justice A.N. Ray to the
post of CJI was done and he was appointed as the Chief Justice of India overtaking three
senior most judges. After that the provisions dealing with appointment and transfer of
judges were interpreted in the famous case of S.P. Gupta vs. Union of India (First Judges
Case). It was humbly held by the Apex Court of India that “the opinion of the CJ doesn’t
have primacy and held that the central government isn’t bound to act in accordance with
the opinion of the constitutional functionaries as the Executive is accountable and the
Judiciary has no accountability.” 3

Nevertheless, later the First Judges Case was overridden by the Second Judges Case,
where the 9-judge bench held that “in event of incongruity in the process of consultation,

3
1982(2)SCR365.

5
view point of the judiciary was primal and the executive could appoint judges only if that
was in conformity with the opinion of CJ.”4

Therefore the Collegium system which is now about more than 20 years old was not only
recognized in the Second Judges Case but also in Third Judges Case.5 So the “collegium
system” of appointment of judges had become the law of the land and had been followed
since then.

Nonetheless, the Collegium system was sought to be get rid of from 1990 onwards with
the laying of the 67th Constitutional Amendment Bill and followed by three more major
attempts.6 Debates and discussions took place with several recommendations made by
various committees emphasizing the need for changing opaque “collegium system”.
Finally on 31st December, 2014 the NJAC Act and the 121st constitutional Amendment
Bill received assent of Pranab Mukherjee.

2.2. Evolution of NJAC

The framework pursued for the arrangement of judges of SC and HC has dependably
been a hazy area with a ton of debate and disarray. Since freedom there have been a ton
of fruitless endeavours to reach at a compelling position of law. The permanent
commission for naming judges of higher judiciary was dependably a matter of concern. A
few steps have been taken by the administration at various timeframe.

The NJAC'S advancement begun with the arrangement of a specially appointed board
with the reason to guarantee an autonomous and submitted legal executive and to
prescribe the best strategy for selecting judges. The board of trustees consistently
expressed that there ought to be a 11 individuals board including the some CJs of High
Courts and a couple of individuals from the two houses and the assignment would be
affirmed by somewhere around 7 of those individuals and after that be displayed to
President for his last affirmation.

4
Supreme Court Advocates on Records vs. Union of India, 1993.
5
In re Special Reference 1 of 1991
6
82nd Constitutional Amendment Bill in 1997; 98th Constitutional Amendment Bill in 2003 and the 120th
Constitutional Amendment Bill in 2013.

6
However, the constituent get together didn't think about these proposals and pondered
more on the vote based strategies for arrangement. A while later, the 121st law
commission of India report, 1987 wanted that the Chief Justice of India alongside 3
senior most judges, the resigned CJI, three CJs of High Courts as per their seniority,
Union Minster of Law, AG of India and an exceptional law academician as individuals.
The Venkatchalaiah Committee Report, 2003 referenced that based on the 1987 report,

National Judicial Commission was proposed in the Constitutional 67th Amendment Bill,
1990. National Judicial Commission Bill had been presented through Constitution (98th
Amendment) Bill in 2003 however it slipped by because of disintegration of Lok Sabha.
Be that as it may, not long after the development of the fourteenth Lok Sabha National
Advisory Council arranged an idea paper on a NJC. The 120th Amendment Bill, 2013
and the Judicial Appointments Commission Bill, 2013 were presented in the Rajya
Sabha.

The report on the JAC Bill, 2013 was put together by the Standing Committee on in
December 2013 and was passed by Rajya Sabha yet slipped by because of disintegration
of the fifteenth Lok Sabha and the bill was pulled back on 11th August 2014. The NJAC
sythesis stayed same from 2013 to 2014 Bill. Anyway the 2014 bill included the
proposals made by the Standing Committee i.e., one of the prominent people will be
assigned from the SCs, the STs, OBCs, women or minorities.

The NDA government in 2014 got the bill for setting up “National Judicial Appointment
Commission” for guideline of arrangement of the judges to the higher judiciary (SC and
HC) in India. Indeed, even a bill to alter the Article 124 of Constitution was brought by
the legislature so as to give established status to NJAC. The Houses of the Parliament
without a solitary negative vote passed the bill overwhelmingly. Furthermore, the
imperative factor was that bills gone with endorsement of individuals originating from
various ideological and political groups. So it ipso facto realizes the significance and the
critical requirement for setting up of NJAC.

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Indeed, even the bill was confirmed by 16 states to give NJAC a protected status,
according to Article 368. 7 President Mr Mukherjee gave his consent promptly rejecting
of the unlawful and obscure “collegium framework” of legal arrangement which broke
essential key of governing rules by every one of the three organs of the state. In any case,
the collegium framework was itself one of a kind as judges named themselves which was
an unheard framework in legal apparatus in any edge of world.

2.3. Working of NJAC

2.3.1. Composition: The 99th amendment inserted a new Article 124-A in the
Constitution, which provides for composition of the NJAC. As per the NJAC Act, the
commission is to be a six member body, including the Chairman, which is to be the Chief
Justice of India. The body will comprise of the CJI, two senior most judges of the SC of
India, Union Law Minister and two eminent personalities, one of them belonging to
schedule caste/tribe or women community. The procedure for selecting the two eminent
persons is laid in the Act wherein a body comprising of the Prime Minister, Leader of
Opposition (where there is no leader of opposition, then the leader of the largest
opposition party) and the CJI shall collectively decide on their nomination in the body.
Henceforth looking into the numerical strength and composition of the commission, 3
members represent the judiciary, while only one member to represent the executive, i.e.
the Law Minister.8

2.3.2. Functions and Procedure: The NJAC will recommend to the President all
names of the eligible persons for appointment as the CJI and other Judges of the SC and
Chief Justices and other judges of the HC and for their transfers and for matters
connected therewith or incidental thereto. The body is to be headquartered in New Delhi
where the CJI will its head. Wisely scrutinizing the composition of the NJAC, it is ipso
facto evident that judiciary had an active and an even superior role in the exercise of the

7
PTI, 16 states ratify Judicial Appointments Commission Bill, 02/02/2015,
http://timesofindia.indiatimes.com/india/16-states-ratify-Judicial
AppointmentsCommissionBill/articleshow/45664202.cms
8
The National Judicial Appointments Commission Act, 2014, Act No. 40 Of 2014.

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recommending power of the commission. It also ensures the persons have ability,
integrity and merit.9

The assortment process of two eminent members has an dynamic role of judiciary in
addition to the common consensus of the ruling and opposition party. Subsequently
closely focusing on the organization of the commission, there is certifiably not a solitary
shot of Executive manhandling its capacity with mala fide expectation to impact the
judiciary. Along these lines the suppositions of harming legal autonomy by authorization
of NJAC hold no stern ground. The Act additionally gives sufficient space to
guaranteeing government soul in the methodology for arrangement of Judges and Chief
Justice of the High Courts, where the Commission will mull over the perspectives on the
Governor and Chief Minister of the concerned state where appointments are to be made.

In like manner the Act expresses that no suggestion of the Commission will be
substantial, on the off chance that it has been vetoed by any of the two individuals from
the commission. Consequently an accord is required among the individuals with respect
to the proposal to be made to guarantee an objective and straightforward procedure of
appointment of judges. Henceforth, the veto arrangement is a critical key to guarantee
that the judiciary to stays free from impact of any sort from any organs of the state. Thus
the setting up of the National Judicial Commission for legal arrangements is certain an
adjusted and an ideal procedure for selecting the people of honesty to the justice temples.

9
Ibid.

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CHAPTER 3

THE AILING COLLEGIUM AND THE NEED FOR NJAC

The system of collegium for the appointment which tried to keep the judiciary totally
independent from the executive was defective in many ways. Loopholes of this prevalent
system for decades as have been highlighted by different eminent personalities,
commissions and committees as follows:

 The judicial appointments by the “collegium system” were completely opaque and
there was no procedure of checking the rationality of appointment.10
 Judiciary was not accountable in toto which was a grave setback. Mr. Verappa
Moily, the Chairman of 2nd Administrative Reforms Commission noted that,
“Perhaps in no other country in the world does the judiciary have a final say in its
own appointments. In India, neither the executive nor the legislature has much say in
who is appointed to the SC or the HC.”11

3.1. NJAC: The Cure for the Ailment?

The bundle of PILs was at first before the seat of Justice Chelameswar, Justice Anil R.
Dave, and Justice Madan B. Lokur. 12 By method for an Order dated seventh April, 2015
the said seat had put the issues before a bigger seat as it included a "significant
examinations of law with regards to the understanding of the Constitution of India",
without passing any between time requests with regards to the task of the NJAC.13 The
genuine inquiry which emerges for thought is whether the arrangement of NJAC truly
fixes the afflictions that the collegium framework experienced? The issue of legal
responsibility and straightforwardness may likewise have been fathomed as the legal
executive would now be responsible to the official in the matter of its arrangements.

10
21.10.2008, “The Hindustan Times" quoting the then Law Minister, Mr. H.R. Bhardwaj, had reported
“Collegium system has failed. Its decisions on appointments and transfers lack transparency and we feel
courts are not getting judges on merit”.
11
Fourth Report, “Ethics in Governance”, Second Administrative Reforms Commission, p. 50.
12
214th Report of the Law Commission of India, p. 59.
13
Supreme Court Advocates On Record Association and Anr. vs. Union of India, Writ Petition (Civil) No.
13 of 2015 being lead matter.

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3.1.1. Drawbacks:

The lawfulness of the NJAC Act and the 121st protected revision is a subject of
attentiveness. The NJAC Act and the change leave the intensity of legal arrangements, in
the hands of the officials completely. Legal arrangements have dependably been related
with the Independence of Judiciary, which has on numerous occasions perceived to be a
piece of the essential structure of the Constitution. To give such real supremacy to the
official in the arrangement procedure weakens the freedom and can be said to shake the
fundamental structure of the constitution. The words “any other suitable criteria” will
afford a sufficient amount of nepotism and favouritism to the members of the NJAC.

Another apparent hole in the development of the NJAC is the incorporation of "eminent
persons" with no criteria of extraordinary learning. Without such a criteria being set out
the board of trustees comprising of the Prime Minister, the Leader of Opposition and the
CJI will be allowed to select people without responsibility for benefits and different
variables which will, in actuality, lead to maltreatment of the arrangement. In particular,
there is no arrangement for expressing the purposes behind determination of either
“eminent persons” referred in the NJAC act.

No answers has been given as to the viability of the usage, and whether the RTI Act,
2005 would be appropriate to the NJAC, could be uncovered after the NJAC Act comes
into full impact and the guidelines and standards thereunder are planned. No specific
response to these questions can be found.

Additionally there is no arrangement for expressing purposes behind suggestion of


applicants. This can lead maltreatment of forces by the individuals. Further, if the three
individuals from the collegium and the law serve prescribe the reasonableness of a
forthcoming judge, the two eminent individuals (who might be from a non-law field) may
veto the proposal and non-legal components can possibly rule through this veto in the
legal procedure of judicial appointment.

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3.2. NJAC Declared Unconstitutional

The judiciary took a tough stand on 16th October, 2015 and stuck down the 99th
Amendment of 2014 in the Supreme Court Advocates on Record Association v. Union of
India (4th Judges case).14 This move was celebrɑted by mɑny ace legal autonomy
supporters and glared by the individuals who trusted the democrɑcy to be the heɑrt and
soul of the Indian Constitution. Different issues have been voiced against the ongoing
judgment. The alteration was pronounced illegal by a lion's share of 4:1 with a
contradicting sentiment of Chelameswar J. in fɑvour of the NJAC.

The judgment might be commended for the way that it has maintained the autonomy of
legal executive as the essential structure of the Constitution and it is an entrenched
actuality since the fundamental structure of the Constitution can't be abused or be
removed. In any case, the principle of fundamental basic structure itself stays on
exceptionally feeble ground.15 The legal executive has vested upon itself to be the sole
determinant of the different segments that can be the piece of the essential structure of the
Constitution. Thus, the unease of the parliament isn't totally unjustified.16

In spite of the fact that the judgment does mɑnɑges to mɑneuver an approach to maintain
the collegium structure ɑs the foreword to the freedom of judiciɑry which is a bɑsic
structure of the Constitution, anyway it rɑises few amazingly importɑnt inquiries to
consider. One view holds that this decision maintains an extrɑ established gadget creɑted
by the SC's own individuals to meet its own closures as opposed to ɑccepting a
framework legally authorized by a well-known and chosen Parliament. 17

As indicated by the Supreme Court, the mɑin reɑson ɑs to why the NJAC show got
rejected wɑs in light of the fact that it didn't ɑdhere to the Basic Structure Doctrine of the
Constitution and it wɑs a threɑt to the freedom of the legal executive. The total thought
that could be settled on out of the choice wɑs such thɑt the mɑjority of the seat has an
attitude of reasoning that the primɑcy of the judiciɑry framed a piece of the embodiment

14
Supreme Court Advocates on Record Association v. Union of India, (2015) 11 Scale 1
15
Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225
16
Minerva Mills v. Union of India, AIR 1980 SC 1789.
17
Suhrith Parthasarathy, “An Anti-Constitutional Judgment”, The Hindu, Oct. 30, 2015.

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of the Constitution and it wasn’t to be messed with. The bɑsic structure has different key
focuses as have been concluded from the judgment of Kesavananda Bharti v. Union of
India yet nothing of solid importance has been spread out in any of the decisions that
discussions about power of judiciary as the basic structure.18

The lion's share i.e., the majority held the Second Judges judgment to be substantial
which inferred about the supremacy of legal executive. The mind boggling circumstance
emerges due to the contention between the official and the legal executive i.e., the
judiciary where the official trusts in having its offer in the basic leadership identified with
the arrangements however the legal executive does not need any obstruction of any sort.
The legal executive in any capacity did not respect this interruption, henceforth
pronounced NJAC unlawful, leaving no more extent of discussion at present. The bone of
conflict is whether NJAC was an instrument of political interruption or a certifiable
component to avoid the shades of malice of the collegium framework?

18
Nirupama V. Shankar, “The Amendment of the Constitution (Article 368),” The Tamil Nadu Dr.
Ambedkar Law University, https://www.legalbites.in/basic-structure-doctrine-indian-constitution/.

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CHAPTER 4

ANALYSIS: - POLITICAL PERSPECTIVE: HOW WAS THE NJAC BETTER


THAN THE COLLEGIUM SYSTEM?

The 99th constitutional amendment act was passed to supplant the dinky collegium
framework. It needed to successfully evacuate the worries and improve the legal
appointment to the HC and SC of India. The NJAC had a progressively even-minded
strategy and contemplated the issues with the collegium framework included
straightforwardness and the strength of designating judges stayed with the judges.

The NJAC act endowed the connection between the executive and judiciary. It gave the
President who has the ability to rethink the suggestions made by the commission.
Therefore two wings of the Indian popular government were incorporated into the
judicial appointment. The commission guaranteed more straightforwardness and
responsibility, this was one of the real changes to be incorporated as for the collegium
framework which was misty and given no measure of straightforwardness or
responsibility. This would guarantee that the executive would likewise be kept in coil
with respect to appointments.

Another real advantage the NJAC looked to give was that it would expel the components
of nepotism and preference and name competitors dependent on legitimacy and
experience. This was a noteworthy advance in light of a legitimate concern for equity
when we consider the way that the collegium framework did not generally delegate
makes a decision about dependent on legitimacy, yet certain arrangements depended on
variables, for example, nepotism, bribes, family relations, red-tapisim, bias, and so forth.
The NJAC act would keep an eye on arbitrary appointments of judges to the HC and SC
of India. The non-subjective determination was guaranteed as a result of the execution of
the ability to veto by the individuals. The demonstration gives that if any two individuals
from the commission don't acknowledge a proposition or a suggestion then that

14
individual will not be prescribed for appointments. These were among the most
conspicuous points of interest of the NJAC over the collegium framework. 19

Cabinet minister Arun Jaitley stated that in bringing back the collegium framework for
selection of SC and HC judges to secure the freedom of the judiciary, the highest court
had neglected to think about the bigger protected structure, that of Parliamentary majority
which speaks about the "will of the sovereign." Congress representative and legal
counselor Abhishek Manu Singhvi, illuminated that it's not the gathering's stand, yet
expressed that the NJAC judgment was a case of a legitimately and naturally wrong
governing (nearly citing Arun Jaitley). Following the judgment, Singhvi stated: “Having
seen the great and terrible of the framework we have set up, I believe that the NJAC
ought to have been given an opportunity.”20

India is maybe the only country which has this mesmeric confidence in the reliability and
infallibility of judges and in the gross and elevated questionability of non-judges,
howsoever prominent. The perspective of Parliament or political motive of the
government was not to overpower the judicial independence but to make it more
accountable so that the belief of the Indian public on the houses of justice isn’t eroded. 21

Thus, the foundation of the National Judicial Appointment Commission is a considerably


above and beyond towards legal changes. Autonomy of the legal executive must stay
unblemished alongside responsibility of the judges. Sacredness of the judiciary relies on
its reasonable and fair-minded lead which ought to be free from discretionary forces. In a
fair society, where governing body is responsible to the general population and the
official has a responsibility towards the law making body, Judiciary should also be
responsible to the population in which doesn't impacts its capacity of conferring free
justice. In my own view, the judgment is disillusioning as the NJAC coming would have
set up another broad framework as it tried to address the disparagements of the collegium
framework.

19
Sameeksha Salimath, “National Judicial Appointments Commission: A Comprehensive Review”,
Iinternational Journal For Legal Developments And Allied Issues, Volume 1 Issue 4.
20
Suhrith Parthasarathy, “Assessing the NJAC Judgement”, Journal of National Law University Delhi, Vol
3, Issue 1, 2015, pg: 25-32, https://doi.org/10.1177%2F2277401720150103.
21
Justice A.K. Patnaik, “A Critique of the NJAC Judgement”, Journal of National Law University Delhi,
Vol 3, Issue 1, 2015, https://doi.org/10.1177%2F2277401720150102.

15
CHAPTER 5

CONCLUSION

I will like to conclude that it can be said, that judicial appointment commission, may be a
step ahead of the collegium system in terms of judicial accountability, yet the reality
remains that there is a derisory line between judicial responsibility and weakening of the
Independence of the Judiciary. Albeit no other nation on the planet hands judicial
appointments exclusively to judiciary, there are a few ways to secure the Independence of
the Judiciary. In India judicial appointment has been a closed door businesses.

In UK for appointments to the SC, the Lord Chancellor needs to assemble a commission
(15 members Judicial Appointments Commission, just 5 are judges and the Chairman of
JAC isn't a judge) which recommends judges. Based on the suggestion of the
commission, the Lord Chancellor advises this choice to the Prime Minister. 22 "In US too,
the President's candidates experience affirmation hearings in the Senate and are exposed
to open investigation in connection to their professional lives and political perspectives,
so, the appointments of judges is completely a political procedure. In South Africa, the
Judicial Service Commission prescribes legal candidates for the President who, after
meeting with the Chief Justice makes the appointment." 23

This demonstrates none of these nations feel that collegium framework is fundamental to
have a free judiciary. The NJAC Act additionally took motivation from these procedures
abroad. Equalization is struck between the judiciary, executive and legislature amid the
determination procedure. The court in NJAC case held that legal autonomy must be
accomplished without outside impacts. Be that as it may, legal freedom is bound to
develop when there is a consultative procedure of choice. Since this includes
extraordinary and commonly contending institutional interests.

22
Constitutional Reform Act, 2005 (UK).
23
Shambhu Sharan & Gunjan Chhabra, “The National Judicial Appointment Commission – A
Critique”,Rajani, Singhania & Partners Advocates & Solicitors,
https://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Aug/The%20National%20Jud
icial%20Appointment%20Commission%20-.pdf

16
So, the SC needs to move past the institutional plan of legal freedom. It should
concentrate on making an all-around qualified pool of judges who will create free
decisions paying little respect to the appointment procedure. The government, while
guarding the 99th Amendment in SC, had scrutinized the obscurity through with
collegium works. What's more, would it say it isn't appropriate to scrutinize a framework
confined by the overseer of the Constitution, which is negligent of governing rules of
checks and balances? The collegium while making its proposal thinks about seniority as
prime criteria.

Every single such comment raise genuine worries about the plausibility of the collegium
framework. The SC being the overseer of the Constitution is maybe the most critical
foundation, which assumes a broad job in influencing the popular government to endure
and cultivate. Also, on the off chance that such an establishment loses its legitimacy, at
that point I am apprehensive; eventually democracy will kick the bucket. Talented and
good judges paid an enormous cost and the nation all in all endured a gigantic misfortune
by losing legal ability on the seat of the SC.24

Absolute power corrupts absolutely, so there is need of checks and balances. We the
citizens of this great country should ensure that ɑll three organs of the state work
peacefully by abiding by the supreme law of the land and have checks and balances over
each other. Therefore I am of the view that establishment of NJAC would not only make
the judiciary accountable to people but also strengthens its independence from any kind
of malafide activities and partisan character, by making it more democratic and
transparent as our founding fathers contemplated.25

This ɑct has been greeted and accepted by the legɑl fraternity to be the perfect solution
for judicial appointment issues. The ɑct strikes a perfect bɑlɑnce between judicial
accountability and the doctrine of sepɑrɑtion of powers. NJAC should not be read as if
the legislɑture and executive has crossed the “Lɑxmɑnrekhɑ”.

24
Ibid.
25
Satyam Rathore and Ankita Rituraj, “National Judicial Appointment Commission: An analysis of
NJAC’s effect on Judicial Independence in India”, LAW MANTRA, (International Monthly Journal,
I.S.S.N 2321 6417), lawmantra.co.in.

17
REFERENCES

BOOKS

1. Santosh Paul, “Appointing Our Judges–Forging Independence and Accountability-


Essays on Judicial Appointments and an Analysis of the NJAC Judgment”, lexis
Nexis, Edition: 1, 2016.
2. Singh, M.P., “V.N. Shukla’s Constitution of India,” Eastern Book Company,
Lucknow (Reprint 2015).
3. Basu, Durga Das, “Shorter Constitution of India,” LexisNexis Publication (15th ed.
2017).
4. Jain, M.P., “Indian Constitutional Law”, LexisNexis Publication, (8th ed. 2018).
5. Arghya Sengupta, “Appointment of Judges to the Supreme Court of India:
Transparency, Accountability and Independence”, Oxford University Press, New
Delhi, Apr 2018 (1st Ed).

ARTICLES

1. Chand, Bool. “Amending Process Of The Indian Constitution,” The Indian Journal of
Political Science, vol. 2, no. 1, 1940, pp. 28–40. JSTOR,
www.jstor.org/stable/42742975. Articles and Reports:
2. Massey, I. P. “The Process Of Amendment,” Journal of the Indian Law Institute, vol.
14, no. 3, 1972, pp. 407–419. JSTOR, www.jstor.org/stable/43950146.
3. Nirmalendu Bikash Rakshit, “Judicial Appointments,” Economic and Political
Weekly, vol. 39, no. 27, 2004, pp. 2959–2961. JSTOR, www.jstor.org/stable/4415222.
4. Satyam Rathore and Ankita Rituraj, “National Judicial Appointment Commission: An
analysis of NJAC’s effect on Judicial Independence in India”, LAW
MANTRA,(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
5. Shambhu Sharan & Gunjan Chhabra, “The National Judicial Appointment
Commission - A Critique”, Rajani, Singhania & Partners Advocates & Solicitors,
https://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Aug/Th
e%20National%20Judicial%20Appointment%20Commission%20-.pdf.

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