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Citation:
A. K. Patnaik, A Critique of the NJAC Judgement, 3 J.
Nat'l L. U. Delhi 17 (2015-2016)

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 A CRITIQUE OF THE NJAC JUDGEMENT
Justice A.K Patnaik*

In its NJAC Judgement, the Supreme Court by majority struck

down the Constitution (Ninety-Ninth Amendment) Act, 2014 as
well as the National JudicialAppointments Commission Act, 2014
as ultra vires the Constitution. The sole dissenting Judge, Justice
Jasti Chelameswar, however, took the view that the Constitution
Amendment Act was constitutionally valid but did not express any
opinion with respect to the constitutionalvalidity of the NJAC Act.
In this piece, the author, a former Supreme Courtjudge, comments
on the merits and demerits of the majority and minority views in
the NJAC Judgement.

I. INTRODUCTION

The Constitution (Ninety Ninth Amendment) Act (Constitution

Amendment Act) was passed by Parliament in exercise of its powers to
amend the Constitution under Article 368 of the Constitution. The majority
of the judges in Kesavananda Bharati v State of Kerala' have held that
under Article 368 of the Constitution, Parliament has power to amend any
part of the Constitution but cannot alter the basic structure or framework
of the Constitution. Independence of the Judiciary is a basic structure or
framework of the Constitution2 and, therefore, the Constitution Bench in
the NJAC case3 was called upon to decide whether Parliament while
enacting the Constitution Amendment Act and the National Judicial
Appointments Commission Act 2014 (NJAC Act) affected the independence
of judiciary.

Former Judge, Supreme Court of India.

Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
2 Supreme Court Advocates on Record Association and ors v Union of India (1993) 4
SCC 441 [421]; Registrar(Admin) High Court of Orissa Cuttack v SisirKanta Sathpathy
(1999) 7 SCC 725 [1].
3 Supreme Court Advocates on Record Association and anr v Union of India (2016) 5
SCC 1.
18 Journal of National Law University, Delhi [Vol. 3

II. PREVIOUS APPOINTMENT PROCESS & THE

IMPUGNED LAW

Prior to the Constitution Amendment Act, Article 1244 provided that

the President shall consult the Chief Justice of India and such Judges of the
Supreme Court and the Chief Justices of the High Courts in the States as he
may deem necessary for the purpose to appoint the Judges of the Supreme
Court of India. The majority in a nine Judge Bench of the Supreme Court in
in Supreme CourtAdvocates On Record Association and others v Union of
India (SCAOR I) held that independence of the judiciary is a basic structure
or framework of the Constitution. To ensure independence of the judiciary,
there has to be primacy of judiciary in the process of appointment of Judges
of the higher Judiciary. Therefore, when the President consults with the Chief
Justice of India and other judges under Article 124, the decision of the Chief
Justice and other judges (Collegium) would be binding on the President.

The Constitution Amendment Act sought to change this position by

amending Article 124 so as to provide that the President shall appoint
Judges of the Supreme Court on the recommendation of National Judicial
Appointments Commission (NJAC). The Constitution Amendment Act
introduced Articles 124A, 124B, and 124C which relate to the composition
and functions of the NJAC and the regulations relating to the procedure that
the NJAC has to follow. These provisions are extracted below at length for
ease of reference:

Article 124A National Judicial Appointments Commission-

(1) There shall be a Commission to be known as the National
Judicial Appointments Commission consisting of the following
namely:-
(a) the Chief Justice of India, Chairperson, ex-officio;
(b) two other senior Judges of the Supreme Court next to the Chief
Justice of India - Members, ex-officio;
(c) the Union Minister in charge of Law and Justice - Member,
ex-officio;
(d) two eminent persons to be nominated by committee consisting
of the Prime Minister, the Chief Justice of India and the Leader
of the Opposition in the House of the People or where there is
no such Leader of Opposition, then, the Leader of single largest
Opposition Party in the House of the People - Members.

4 Constitution of India 1950, art 124.

5 SCAOR I (n 2).
2015-2016] A Critique of the NJAC Judgement 19

Provided that one of the eminent person shall be nominated

from amongst the persons belonging to the Scheduled Castes,
the Scheduled Tribes, Other Backward Classes, Minorities or
Women:
Provided that an eminent person shall be nominated for a period
of three years and shall not be eligible for renomination.
(2) No act or proceedings of National Judicial Appointments
Commission shall be questioned or be invalidated merely on the
ground of the existence of any vacancy or defect in the constitution
of the Commission.
Article 124B Functions of Commission-It shall be the duty of
the National Judicial Appointments Commission to-
(a) recommend persons for appointment as Chief Justice of India,
Judges of the Supreme Court, Chief Justice of High Courts and
other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High
Courts from one High Court to any other High Court; and
(d) ensure that the person recommended is of ability and
integrity.
Article 124C Power of Parliament to make law-Parliament may,
by law, regulate the procedure for the appointment of Chief Justice
of India and other Judges of the Supreme Court and Chief Justices
and other Judges of High Court and empower the Commission
to lay down by regulations the procedure for the discharge of its
functions, the manner of selection of persons for appointment and
such other matters as may be considered necessary by it.

Thus, Article 124C vested power in Parliament to make a law for

regulating the procedure for appointment of the Chief Justice of India and
other Judges of the Supreme Court and Chief Justices and other Judges of
High Courts. In exercise of this power, Parliament enacted the NJAC Act. 6
Section 5 of the NJAC Act lays down the procedure for selection of Judges
of the Supreme Court.7 Section 6 lays down the procedure for selection of

6 The National Judicial Appointments Commission Act 2014.

7 Section 5. Procedure for selection of Judge of Supreme Court-(1) The Commission
shall recommend for appointment the senior-most Judge of the Supreme Court as the
Chief Justice or India if he is considered fit to hold the office:
Provided that a member of the Commission whose name is being considered for
recommendation shall not participate in the meeting.
(2) The Commission shall, on the basis of ability, merit and any other criteria of suitability
as may be specified by regulations, recommend the name for appointment as a Judge of
20 Journal of National Law University, Delhi [Vol. 3

Judges of the High Courts.8 Section 7 confers power on the President to

require reconsideration of any recommendation made by NJAC, 9 and Section

the Supreme Court from amongst persons who are eligible to be appointed as such under
clause (3) of article 124 of the Constitution.
Provided that while making recommendation for appointment of a High Court Judge,
apart from seniority, the ability and merit of such Judge shall be considered:
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.
(3) The Commission may, by regulations, specify such other procedure and conditions
for selection and appointment of a Judge of the Supreme Court as it may consider
necessary.
8 Section 6. Procedure for selection of Judge of High Court-(1) The Commission
shall recommend for appointment a Judge of a High Court to be the Chief Justice of a
High Court on the basis of inter se seniority of High Court Judges and ability, merit and
any other criteria of suitability as may be specified by regulations.
(2) The Commission shall seek nomination from the Chief Justice of the concerned High
Court for the purpose of recommending for appointment a person to be a Judge of that
High Court.
(3) The Commission shall also on the basis of ability, merit and any other criteria of
suitability as may be specified by regulations, nominate name for appointment as a Judge
of a High Court from amongst persons who are eligible to be appointed as such under
clause (2) of article 217 of the Constitution and forward such names to the Chief Justice
of the concerned High Court for its views.
(4) Before making any nomination under sub-section (2) or giving its views under sub-
section(3), the Chief Justice of the concerned High Court shall consult two senior-most
Judges of that High Court and such other Judges and eminent advocates of that High
Court as may be specified by regulations.
(5) After receiving views and nomination under sub-sections (2) and (3), the Commission
may recommend for appointment the person who is found suitable on the basis of ability,
merit and any other criteria of suitability as may be specified by regulations.
(6) The Commission shall not recommend a person for appointment under this section if
any two members of the Commission do not agree for such recommendation.
(7) The Commission shall elicit in writing the views of the Governor and the Chief
Minister of the State concerned before making such recommendation in such manner as
may be specified by regulations.
(8) The Commission may, by regulations, specify such other procedure and conditions
for selection and appointment of a Chief Justice of a High Court and a Judge of a High
Court as it may consider necessary.
9 Section 7. Power of President to require reconsideration - The President shall, on
the recommendations made by the Commission, appoint the Chief Justice of India or a
Judge of the Supreme Court or, as the case may be, the Chief Justice of a High Court or
the Judge of a High Court:
Provided that the President may, if considers necessary, require the Commission to
reconsider, either generally or otherwise, the recommendations made by it:
Providedfurther that if the Commission makes a recommendation after reconsideration
in accordance with the provisions contained in sections 5 or 6, the President shall make
the appointment accordingly.
2015-2016] A Critique of the NJAC Judgement 21

12 confers power on the NJAC to make regulations to carry out provisions

of NJAC Act.10

III. THE JUDGEMENT

In the NJAC Judgement, the majority, relying on Supreme CourtAdvocates-

On-Record Association and Others v Union of India (1993), held that since
the composition of the NJAC includes three non-judicial members and three
members of the judiciary, the primacy of the judiciary in the appointment
and transfer of judges is affected. Since primacy of the judiciary is crucial
for independence of the judiciary, the Constitution Amendment Act violates
independence of the judiciary which is a basic structure of the Constitution.
The majority also held that clause (c) of Article 124 A(1) which includes
the Union Minister in charge of Law and Justice as Member, ex- officio of
the NJAC will bring in political influence in the appointment and transfer
of Judges and is, therefore, violative of the independence of the judiciary."
The majority further held that clause (d) of the Article 124A includes two
eminent persons to be nominated by a Committee in the NJAC, but the

10 Section 12. Power to make regulations-(1) The Commission may, by notification

in the Official Gazette, make regulations consistent with this Act, and the rules made
thereunder, to carry out the provisions of this act.
(2) In particular, and without prejudice to the generality of the foregoing power, such
regulations may provide for all or any of the following matters, namely
-

(a) the criteria of suitability with respect to appointment of a Judge of the Supreme Court
under sub-section (2) of section5;
(b) other procedure and conditions for selection and appointment of a Judge of the
Supreme Court under sub-section (3) of section 5;
(c) the criteria of suitability with respect to appointment of a Judge of the High Court
under sub-section (4) of section 6;
(d) other Judges and eminent advocates who may be consulted by the Chief Justice under
sub-section (4) of section 6;
(e) the manner of eliciting views of the Governor and the Chief Minister under sub-
section (7) of section 6;
(f) other procedure and conditions for selection and appointment of a Judge of the High
Court under sub-section (8) of section 6;
(g) the procedure for transfer of Chief Justice and other Judges from one High Court to
any other High Court under section 9;
(h) the procedure to be followed by the Commission in the discharge of its functions
under sub-section (1) section 10;
(i) the rules of procedure in regard to the transaction of business at the meetings of
Commission, including the quorum at its meeting, under sub-section (2) of section
10;
(j) any other matter which is required to be, or may be, specified by regulations or in
respect of which provision is to be made by regulations.
" SCAOR II (n 3) [1080] - [1090].
22 Journal of National Law University, Delhi [Vol. 3

expression "eminent persons" has not been defined and this vagueness about
two members of the NJAC affects the independence of Judiciary.12

Justice Chelameswar dissenting from the majority view held that the
presence of the Law Minister in the NJAC confers only one sixth of the
voting power and hence his inclusion does not undermine independence of the
judiciary.1 3 Justice Chelameswar also held that the Law Minister represents
the executive with a vast administrative machinery under its control and is
capable of making enormous and valuable contribution to the process of
selection of Judges of the Supreme Court and High Courts and to eliminate
the executive from the process of selection would be inconsistent with the
foundational premise that the Government comprises elected representatives
of the people in a democracy.14 Regarding nomination of two eminent persons
under clause (d) of Article 124A, Justice Chelameswar took the view that
that the nomination of two eminent persons will not affect independence
of the judiciary if sufficient safeguards against possible abuse of the power
of the Committee to nominate eminent persons are in place. In any case
the nomination of eminent persons to the NJAC will be subject to judicial
15
review.

IV. ANALYSIS & SUGGESTIONS

A. Composition of NJAC

In my view, the majority in the NJAC judgement is right in holding that

the inclusion of three non-judicial members as against three judicial members
would affect the primacy of the judiciary in the process of appointment and
transfer of judges and consequently will affect independence of the judiciary.
Hence, Article 124A of the Constitution in the NJAC Act in so far as it
provides that the NJAC will comprise three judges and three non-judicial
members would destroy the basic structure or framework of the Constitution.
In my view, however, the majority of judges were not correct in holding
that the inclusion of Union Minister for Law and Justice in the NJAC was
destructive of the basic structure or framework of the Constitution. The
Union Minister for Law and Justice represents the Council of Ministers in
the NJAC and the Council of Ministers who are elected by the people and
are accountable to the people through Parliament, must have some say with
regard to the appointment and transfer of judges of the Supreme Court and

12 ibid [333].
13 ibid [1218].
14 ibid.
" ibid [1223] - [1226].
2015-2016] A Critique of the NJAC Judgement 23

High Courts. Democracy is also a basic structure and framework of the

Constitution. The majority has rightly held that in the absence of a precise
definition of the two "eminent persons" in the Constitution Amendment Act,
the inclusion of eminent persons to the NJAC will threaten the independence
of the judiciary. In my view, independence of the judiciary being part of the
basic structure or framework of the Constitution cannot be exposed to the
risk of inclusion of "eminent persons" who have perceptions inconsistent
with the independence of the judiciary.

Therefore, clause (d) of Article 124A (1) inserted by the Constitution

Amendment Act destroys independence of the judiciary, which is a basic
structure or framework of the Constitution. If clause(d) of Article 124A (1)
is struck down as ultra vires the Constitution, the NJAC will comprise Chief
Justice of India, two other senior most Judges of the Supreme Court and
the Union Minister for Law and Justice as provided in clauses (a), (b) and
clause (c) of Article 124A (1) introduced by the Constitution Amendment
Act and the NJAC Act. It would have three members from the judiciary and
one member from the Executive and such a composition of the NJAC would
have still ensured primacy of judiciary in the process of appointment and
transfer of judges of the Supreme Court and High Courts and would have
been compatible with independence of the judiciary.

B. Veto Powers

The second proviso to Section 5 (2) and sub-section (6) of Section

6 of the NJAC Act provide that the NJAC shall not recommend a person
for appointment as a judge of the Supreme Court or High Court if two
members of the NJAC do not agree with such recommendation. In the NJAC
Judgement, the majority held that this veto power will affect the independence
of the judiciary and is accordingly ultra vires.16 Justice Chelameswar in his
minority judgement has not expressed any view on this aspect.

In my view, the majority is right. It is for the NJAC to consider the merits
and integrity of a candidate and to decide whether a particular candidate
should be or should not be appointed as a judge of the Supreme Court or
High Court in accordance with procedure laid down by the NJAC under
Section 12 of the NJAC Act. If two members of the NJAC have the power
to veto a selection, it will put fear in the minds of the candidates and will
seriously affect the independence of their thinking thus endangering the
independence of the judiciary.

16 ibid [8921.
24 Journal of National Law University, Delhi [Vol. 3

The Constitution Bench in my view should have only struck down the
provisions of clause (d) of Article 124 (1) introduced by the Constitution
Amendment Act and the second proviso under Section 5 (2) and Section
6 (6) of the NJAC Act and should have upheld the other provisions of the
Constitution Amendment Act and the NJAC Act by following the principle of
severability laid down in the R.M.D Chamarbaugwallav Union ofIndia17 that
if the valid and invalid provisions can be separated and the valid provisions
can be operative without the invalid provisions, then the invalid provisions
should be struck down and the valid provisions can be upheld.

Section 7 of the NJAC Act confers power on the President to reconsider

the recommendations made by NJAC and Section 12 of the NJAC Act
confers power to make regulations for providing criteria of suitability, the
procedure and other matters with regard to the selection for appointment and
transfer of the Judges. These provisions in Sections 7 and 12 of the NJAC
Act are sufficient safeguards to ensure that the process of appointment and
transfer of Judges do not affect the independence of judiciary and that only
competent candidates are selected by the NJAC for appointment as Supreme
Court and High Courts judges and there is no arbitrariness in the transfer of
Judges.

V. CONCLUDING REMARKS

The present collegium system of appointment of Judges is not regulated

by the provisions of the Constitution or by an Act of Parliament or by any
statutory regulations. Experience since 1994 has shown that it has not
established transparent processes of appointment of judges to the Supreme
Court and to the High Courts and of transfer of judges. In my considered
view, the Supreme Court has lost a rare opportunity in our constitutional
history to constitutionally and statutorily regulate the process of appointment
and transfer of Judges of the Supreme Court and the High Courts for ensuring
better quality of justice for the people of our country.

17 State of Bombay v RMD Chamarbaugwallaand anr AIR 1957 SC 628 [12].