TAMIL NADU NATIONAL LAW SCHOOL

B.A.LL.B., (HONS.), FIRST SEMESTER 2014-15

POLITICAL SCIENCE PROJECT

ON
NATIONAL JUDICIAL APPOINTMENT COMMISSION: IMPORTANCE OF
INDEPENDENCE OF JUDICIARY

PROJECT BY:-

SHUBHAM SINGH BHADOURIYA

BA0140059

SECTION-B

SUBMITTED TO:-

Dr. S. Subba Rao

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 Table of Contents

 Declaration
 Acknowledgements
 Supervisor’s Certificate
 Objective
 Research methodology & Interpretation
 Introduction
 Importance of Independent Judiciary: One of the three pillars of the
Democracy
 Functions of Judiciary
 National Judicial Appointment Commission Bill,2014
 Collegium System: Independence of Judiciary compromised
 Incidents of the Independence of the Judiciary being threatened
 Conclusion
 Bibliography

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 DECLARATION

I, Shubham Singh Bhadouriya hereby declare that the project work entitled “National
Judicial Appointments Commission Bill 2014: Importance of Independence of Judiciary ”
submitted to Tamil Nadu National ; Tiruchirappalli, is a record of bona-fide work done by
me under the supervision and guidance of Prof. Dr. S. Subba Rao, Faculty of Political
Science, Tamil Nadu National Law School; Tiruchirappalli.

All information furnished in the project is true to the best of my knowledge devoid of
plagiarism. If plagiarism under the circumstances is truly established then the Law School
may be pleased to proceed with any action against me according to the rules and regulations.

SHUBHAM SINGH BHADOURIYA

Section- B

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 ACKNOWLEDGEMENTS

At the outset, I thank the Almighty who gave me the strength to accomplish this project with
sheer hard work and honesty.

I take this opportunity to observe protocol to show my deep gratitude to our revered Political
Science Course Teacher Dr. S. Subba Rao, for his kind gesture in allotting me such a
dynamic and burning issue as research project. His timely advice, direction and valuable
assistance tremendously boosted me during the making of this project.

Secondly, all this wouldn’t have been possible without my parents and friends who gave
their valuable time for guidance, boosted my confidence and helped me a lot in completing
this project without any drawbacks. Hence I am forever indebted and grateful to them.

Thirdly, I am very much thankful to the staff and administration of TNNLS who provided
valuable sources of information in the form of library and database connections.

The successful creation of this project is due to the background work and co-operation of
many persons. So I once again take this opportunity and privilege to convey my deepest
regards and thanks to all those who was involved directly or indirectly in the making of this
project.

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5|Page
 SUPERVISOR’S CERTIFICATE

This is to certify that the Research Project entitled: “NATIONAL JUDICIAL

APPOINTMENTS COMMISSION BILL 2014: INDEPENDENCE OF JUDICIARY ”
submitted to the TAMIL NADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI in
fulfillment of the requirements for internal component for B.A; LL.B (HONS.), First
Semester is an original and bona-fide research work carried out by SHUBHAM SINGH
BHADOURIYA under my supervision and guidance. No part of this study has been
submitted to any University for the award of any Degree or Diploma whatsoever.

Dr. Subba Rao ( )

Date: 04-10-14

Place: Tiruchirappalli

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 OBJECTIVE

This project primarily focuses on the appointment of judges to the higher judiciary and the
inherent loop-holes prevailing in the already existing collegiums system with the
introduction of national judicial appointments commission and the ruckus that followed in
the Parliament due to this bill. It also brings into limelight the concept of Independence of
Judiciary as a constitutional requisite and talks about, whether NJAC Bill can affect the
independence of judiciary.

RESEARCH METHODOLOGY & INTERPRETATION

This research is primarily descriptive and analytical in nature. Primary, Secondary and
Electronic resources have been avidly used to gather information about the topic.
Books and other references as guided by Faculty of Political Science have been given prime
importance which was helpful in giving this project a firm structure. Websites, dictionaries
and articles have also been referred.
Footnotes have been provided wherever needed to acknowledge the source.

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 INTRODUCTION

While drafting the Constitution of the India, the Constituent Assembly had made great
efforts to ensure the independence of judiciary from any coercive political influence. To
meet this aim it made significant efforts by introducing a number of significant provisions in
the Constitution. For example, the judges of the Supreme Court and the High Courts serve
not at the pleasure of the President, but for the fixed age. The salaries and allowances of
the judges are charged from the Consolidated Fund of the State (which is incapable of being
a subject of vote by a Legislative Assembly); discussion on the conduct of any judge is
expressly barred in the Parliament, except in the case of the impeachment of judges in case
of alleged misbehavior, misconduct, and doing anything that is unconstitutional. Powers are
conferred on the High Courts and the Supreme Court to punish for contempt of itself; and
significantly, judges of the higher judiciary can be removed only through a complicated
process of impeachment by the Parliament. Considering the importance of judicial
independence to the Assembly, it didn’t see the vesting of the ultimate power of appointing
judges on the executive as an infringement of that principle; on the contrary it viewed such
power as a vital tool in the checks and balances required to ensure a proper separation of
powers. A broad process of consultation with several important authorities was mandated
to further validate the system, but the ultimate authority was placed on the President. The
Assembly felt that such a system should be instilled in the court, which were given wide
powers of judicial review including the power to strike down laws made by the Parliament,
democratic legitimacy, and would thereby serve as an effective check on judicial power.
In Union of India v. Sankal chand Himmatlal

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Seth1, the Supreme Court found that the word “consultation” did not mean “concurrence”,
it was guided by these objectives, and the court held that the opinion of the Chief Justice of
India in making transfers is not binding on the executive. While this decision was partially
affirmed by a majority of seven judges, regarding the appointment process in the First
Judge Case (S.P. Gupta v. Union of India)2, the Supreme Court dramatically altered its
position in the Second Judges Case (Supreme Court Advocates-on-Record Association v.
Union of India)3, it held that the word “consultation” in article 124 and 217 means
“concurrence”, and the primacy in making judicial appointments is vested in the Chief
justice of India. This decision of the Supreme Court was later affirmed with certain
modifications in the Third Judge Case (In Re Presidential Reference)4, and it was held that
the ultimate power of making appointments to the Supreme Court and the High Courts lay
with a collegium of judges comprising the Chief Justice and his or her four senior most
colleagues.
Through the Second and Third Judges cases, the
Supreme Court gave itself the power to appoint judges. As the nature in which
appointments were made in the last two decades has showed concern, the decisions
depicted a concern expressed by James Madison in the American context: “The
accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-appointed, or elective,”5 he said, “may
justly be pronounced the very definition of tyranny.”6
The James Madison (4th President of United
States of America) views can better be explained as; if the power of the judiciary, executive,
and legislative are vested in any one organ of the government then it can be termed as a
tyranny. In India the Judiciary plays an important role in the proper functioning of the

1
Union of India v. Sankal Chand Himmatlal Seth 1997 SCC (4) 193
2
S.P. Gupta v. Union of India, 1981 Supp (1) SCC 87
3
Supreme Court Advocates-on-Record Association v. Union of India,(1993) (4) SCC 441
4
In Re Presidential Reference, (1998) 7 SCC 739
5
http://en.wikipedia.org/wiki/Federalist_No._47
6
http://en.wikipedia.org/wiki/Federalist_No._47

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country. The collegium system evolved by the three judge case lacks in transparency, there
are many instances of the failure of the working by the collegium system. Now, the
parliament has moved two bills, Constitution (99th Amendment) Bill and National Judicial
Appointment Commission Bill, 2014, to replace the Collegium System, but many of the
critics argued that the proposed commission will empower the executive to interfere in the
matters of the judicial appointments

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 IMPORTANCE OF INDEPENDENT JUDICIARY: ONE OF THE THREE PILLARS OF

JUDICIARY

In ancient times not much attention was paid towards the independence of judiciary and
monarchs had all the powers (i.e., of executive, judiciary, and legislature). But with the
growing time the need for the independence of judiciary for ensuring full justice was
realized. Many political thinkers including Bodin and Montesquieu also emphasized the
independence of the judiciary. Today in all democratic countries, the independence of
judiciary is considered essential so that the fundamental rights of people are protected.
Bryce has rightly said regarding the importance of independent judiciary,

“There is no better test of the excellence of a government than the efficiency of its judicial
system, for, nothing more nearly touches the welfare and security of the average citizen
than his knowledge that he can rely on the certain and promote administration of justice”.

India is a democratic country. Democracy stands on three pillars the Legislature, Executive,
and Judiciary. The function of the first is to formulate the policy and enact it as law, the
second carries out policy in action and third applies the law according to rules of procedural
justice and resolve disputes. In democracy there should be proper separation and balance
of power between the judiciary and the executive. Freedom from influence or control of
executive is of crucial importance. It is important for individual freedom, so that judges
gave their verdict without fear or favor.
In order the democracy to be successful the judiciary
should be free. If judiciary is not independent then it may be equivalent to dictatorship. In
dictatorship the power lies in the hand of a person, there is no distribution of power
between the different organs of the government. Judiciary is the guardian of the

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constitution as per the rule of law. The judiciary is the interpreter of the constitution. Under
article 50 of the Constitution of India, Judiciary is separated from the executive.
The institution of judiciary in a democratic setup is
perhaps one of the most important organs as it is entrusted with the great responsibility of
administering justice, one of the core needs of the citizenry. As the custodian of rights of
the citizens of a country, the judiciary is bestowed with the task of realizing the
constitutional values to its fullest extent, in furtherance of the vision of the Constitution
Makers. The Preamble to the Constitution enshrines the ideals of securing social, economic
and political justice to all its citizens. Justice, failed to be meted out in a fair manner,
jeopardizes the interests of the civil society, vitiating the principle of rule of law. An
independent judiciary can be stated to be the cornerstone of a democracy. In Union of India
v. Sankalchand Himmatlal Seth AIR 1977 SC 2328, Untwalia J. called the judiciary as a
“watching tower above all the big structures of the other limbs of the state from which it
keeps a watch like a sentinel on the functions of the other limbs…”7. Therefore, the
presence of a strong, independent and efficient judiciary, both in letter and spirit, is an
absolute necessity to achieve the laudatory goals imbibed in the Constitution, for it is an
established principle of natural justice that justice is not only to be done but should be
manifestly seen to be done.
It is needless to say that the judiciary and the
judicial decisions, over the years, have shaped the Indian polity to a great extent. The role
played by the judiciary has been pivotal in ensuring a process of fairness in governance and
administration. Thus, be it the pragmatic interpretation of Article 21 or propounding
doctrines of equality, the judicial decisions in India have infiltrated through every strata of
the society. While many of these decisions are laudable, in recent times, allegations,
questioning the integrity of this great institution have multiplied. Lack of accountability and
the alleged wide spread corruption have endangered the spirit of democracy, calling into
question the integrity of the conscience keepers of the law. As a result, constant public

7
http://indiankanoon.org/doc/1302865
12 | P a g e
debates and scrutiny have subjected the judiciary to stand the touchstone of accountability
to ensure an increased transparency in the judicial process and restore the lost public faith.
However, the demand for greater accountability in the judiciary has been met with
resistance from within the judiciary, afraid of encroachment into the realm of judicial
independence.

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 Functions of the Judiciary

Judiciary is regarded as the guardian of the rights and freedoms of the people and also of
the constitution. In many countries judiciary is the adviser to the executive in the legal
matters, in our countries also the apex court also has the advisory jurisdiction under article
143 of the constitution of India. Under advisory jurisdiction, Supreme Court can give its
opinion on any matter of law or fact of public importance referred to it by the president.
Judiciary is essential for maintaining peace and imparting justice, and also for the
enjoyment of fundamental rights.
Judiciary acts as the interpreter of the laws, in court a
large number of cases are brought before the judges in which the question of the
interpretation of law arises, because in such cases the law is not clear. Even certain cases
are also brought before them in which the law is silent and judges give their own decision in
those cases, later, these decisions are quoted in other similar cases. Judiciary also resolves
the disputes between citizens or between the government and the citizens, be it of civil or
criminal nature.
Judiciary also acts as the protector of the civil rights, people
are given many rights by the state, which are enjoyed by them and in case of infringement
of these rights the party whose right is infringed can approach judiciary for the safeguard of
their rights. Judiciary also acts as the guardian of the fundamental rights granted to the
citizens by the constitution. In our country also in case of the violation of the fundamental
rights, aggrieved can approach High Court and Supreme Court for the protection of these
rights. It is the duty of the Supreme Court and High Courts to protect the rights of the
citizens. Judiciary also acts the guardian of the constitution. In India judiciary is given power

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of the judicial review, if any law passed by legislature violates the constitution then the law
should be law should be declared as the void, this principle was devised by Chief Justice
Marshall of U.S.A in Marbury vs. Madison (1803).

In Federal form of Government there is division of powers between the Centre and the
states. Whenever there is dispute arising between the centre and the state over the
jurisdiction issue, then the Supreme Court has the right to decide these disputes.

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 NATIONAL JUDICIAL APPOINTMENTS COMMISSION BILL 2014

The Constitution (99th Amendment) BILL, and the National Judicial Appointment
Commission Bill, 2014, is a bill which seeks to replace the collegiums system of selection
process for appointment of judges and give the executive an equal role in judicial
appointments, lay down the procedure to be followed by the proposed body for
appointment of Supreme Court judges and transfer and appointment of chief justices and
other judges of the high courts. The Constitution (99th Amendment) Bill being a
constitutional bill it has to go through the motion of seeking consent of different States
before getting President’s assent. The Constitution (99th Amendment) Bill, if enacted this act
may be called the Constitution (99th Amendment) Act, 2014. The Constitution (99th
Amendment) Bill, 2014 is an enabling constitutional amendment for amending certain
related provisions of the constitution and which seeks to put the proposed judicial
appointment commission. The proposed bill seeks to insert article 124A, 124B, and 124C
after article 124, and alter article 127, 128, 217, 222, and 224 of the Constitution of India.
The National Judicial Appointment Commission Bill, 2014, which was passed by the
Parliament simultaneously with the Constitution (99th Amendment) Bill, provides the
working of the Commission. The NJAC will be responsible for making binding
recommendations to the President for appointing judges to the Supreme Court and to various
High Courts.
This amendment will insert article 124A, which provides for the composition of
a commission consisting of the Chief Justice of India, chairman, ex-officio ; two other senior
judges of the Supreme Court next to the Chief Justice of India, members, ex officio; the
Union Minister in charge of Law and Justice, member, ex-officio; two eminent person to be
nominated by the committee consisting of the Prime Minister, the Chief Justice of India and

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the Leader of 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 People –

Members provided that one of the eminent person shall be nominated from amongst the
persons belonging to the Scheduled Caste, the Scheduled Tribes, the Other Backward
Classes, the Minorities or Women ; provided further that the eminent person shall be
nominated for a period of three years and shall not be eligible for re-nomination. No act or
proceedings of the National Judicial Appointment Commission shall be questioned or
invalidated merely on the ground of vacancy or defect in the constitution of the commission.
This amendment will also insert article 124B, which says
that it shall be the duty of the National Judicial Appointment Commission to recommend
persons for appointment of Chief Justice of India, judges of Supreme Court, Chief justices of
High courts, and other judges of High Courts. The commission will also recommend transfer
of Chief Justices and other judges of High Courts from one High Court to any other High
Court and ensure that person recommended is of ability and integrity.
This amendment will also insert article 124C in the
Constitution, which says, that, Parliament may, by law, regulate the procedure for the
appointment of Chief Justice of India, other judges of the Supreme Court, and Chief Justices
of High Courts, and other judges of High Courts. It also empowers the commission to lay
down procedure for the discharge of its functions, the manner of selection of persons for
appointment and such other matters as may be consider necessary by it.
This amendment will also alter article 1278 of the
constitution, in clause(1) for the words the Chief Justice of India with may previous consent
of the President”, the words the National Judicial Appointment Commission on a reference
made to it by the Chief Justice of India , may with the previous consent of President” shall be
substituted.
In the appointment of Chief Justice of India, the commission
will recommend the senior most judge of the Supreme Court, only if he is considered fit to
hold the office. For the appointment of Supreme Court judges it shall recommend the persons

8
See http://www.prsindia.org/uploads/media/constitution

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on the basis of their ability, merit, and other criteria. If any two members of the commission
oppose the recommendation of the commission then the commission cannot recommend such
person. The President has the power to send the recommendation for reconsideration send by
the commission for reconsideration. But, if the commission makes the unanimous
recommendation after recommendation from the President, the president shall make the
appointment accordingly.
One of the important features of this commission will be the
transparency; the entire process of NJAC will be aimed at ensuring transparency. It has been
suggested that the entire record of the process, starting from the nomination made up to the
final recommendation to the President, the entire process will be publicly disclosed.

CRITICISM OF THE COMMISSION: -

Immediately after the approval of the Parliament for amendment, criticism of the proposed
commission, which will replace the collegium system in making judicial appointments, has
been started. Some, such as the Supreme Court Advocates-on-Record Association, have
already moved the Supreme Court challenging the law for violating the Constitution’s Basic
Structure. The focus of criticism has been not only on the composition of the NJAC, but also
on its working as provided by the National Judicial Appointment Commission Bill, 2014,
which was passed simultaneously with the Constitution (99th Amendment) Bill. The
detractors argue that the proposed law vest excessive power in the executive, including a
potential ability to veto nominations there by impinging on the independence of the judiciary.

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ARGUMENTS IN SUPPORT OF THE COMMISSION: -

The detractors on new law overlook a number of key considerations. The new laws have
their deficiencies, but they are a product of sustained discussion across all political lines and
are examples of a non-partisan process of law making. What’s more, they have allayed fears
that the executive would exercise unbridled power over judicial appointments. And most
crucially the laws would obliterate the collegium system which is not only opaque and
extra-constitutional, but also, as evidence of the recent past has shown, an object failure.
The Constitution of India clearly says that the Executive will appoint judges after consulting
the Judiciary.
Article 1249 Inter alia says:
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the judges of the Supreme Court and of the
high courts in the states as the President may deem necessary for the purpose
and shall hold office until he attains the age of 65 years: Provided that in the case of
appointment of a judge other than the chief Justice, the chief Justice of India shall
always be consulted.”
Article 21710 says, inter alia:
“Every judge of a high court shall be appointed by the President by warrant under
his hand and seal after consultation with the Chief Justice of India, the Governor of
the state, and, in the case of appointment of a judge other than the chief Justice, the
chief Justice of the high court….”.
The constitution is clear that the executive appoints
judges in consultation with the judiciary. Not the vice-versa. But in 1993, the Supreme Court
reversed the process by creating the collegium system in which judges would appoint
judges and the government could merely object to their nominations. But the collegium

9
V. D. Mahajan
10
V. D. Mahajan

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could still go ahead with its decision. This usurpation of power is unprecedented in the
history of constitutional India. It is to end this usurpation that the NJAC bill is introduced.
This is not quite true that the new bill introduced might
threaten the independence of the judiciary. The new law says that judges will be chosen or
transferred by a six-member NJAC. Of the six, three would be the CJI and two senior-most
Supreme Court judges, two would be undefined “eminent persons”, and one would be the
Law Minister. If two of the members object to a judge’s nomination or elevation, the matter
would end there. The two eminent persons are themselves to be nominated by a three-
member team – the CJI, the PM and the Leader of the Opposition (or leader of the single
largest party in the Lok Sabha).
If half the NJAC members are judges, how is equivalent to
reducing the role of the judiciary in judicial appointments? The two-member veto can, of
course, stop the judges from getting their choices in, but the reverse could also be true: two
judges, or two politicians, or two eminent persons, or a combination of any two members
of NJAC could hold a veto. If relationships in the NJAC are frayed, there could be deadlock,
but the fact is no one can shove a judge down anyone’s throat. The judiciary’s role is not
diminished; it is being counter-balanced by giving the executive and politicians some say.
This was anyway the original intent of article 124 – duly modified to widen the process of
selection.
It is worth noting that in the US, judge selection is entirely
a political process (existing judges have no say) and in Britain (for England and Wales), the
15-member Judicial Appointments Commission has 15 members, among whom only five are
judges. The chairman of the JAC is a lay person, and not a judge. In contrast, in the Indian
NJAC, the CJI is the head. There is no way anyone can say the new law diminishes the
judiciary.
As the US and UK examples show, globally it is not judges who appoint judges. Moreover,
democracy means laws are made by elected representatives, and not judges. Judges only
have to interpret the laws and check if they impinge on the basic freedoms guaranteed by

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the constitution. In recent years, judges have been foraying into everything, including policy
(as in the 2G judgment, when the judges said natural resources can only be sold through
auctions), due to the general loss of faith in politicians. But voters elect the same politicians.
It cannot be any job of the judiciary to thwart the people’s will. The will of the people
means the right to change the laws – as long as they are not in contravention of the basic
features of the constitution.

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 What is the Collegium System?

I have talked about the NJAC Bill 2014, which will replace the twenty one year old
Collegiums System for appointment of judges now we will talk about the Collegiums System
and its evolution. The Collegiums System is a system under which appointment and transfer
of judges is decided by a forum comprising the Chief Justice of India and the four senior
most judges of the Supreme Court. There is no mention of Collegiums System either in the
original Constitution of India or in successive amendments. The Collegiums System for the
appointment of judges was developed over a period of time; the Supreme Court of India
has developed this system of appointment of judges in order to ensure judicial
independence so that no other branch of the Government (Legislature and Executive)
would have any role in the appointment of judges. This Collegiums system for appointment
of judges had developed over a period of time, with a series of three judgments given by
the Supreme Court of India that are called as the Three Judges Cases. Following are the
three cases:

1. S.P. Gupta v. Union of India-198111 (also known as the First judges case): In this case the
Supreme Court declared that the primacy of the recommendation of the Chief Justice of
India to the President can be refused for “cogent reasons”. This brought a shift in favor of
the Executive having privacy over the judiciary in judicial appointment for next 12 years.

2. Supreme Court Advocates on Record Association v. Union of India 199312: On October 6,

1993, a nine judge bench decision of the Supreme Court in this case said ‘‘justifiability’’ and

11
S.P. Gupta v. Union of India, 1981 Supp (1) SCC87.
12
Supreme Court Advocates on Record Association Vs UOI reported in 1993

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‘primacy’ required that the CJI be given the “primal” role in such appointments. It
overturned the S P Gupta judgment saying the role of the Chief Justice of India being primal
because this is the matter of judicial family, executive cannot have equal role in this matter.

3. Special Reference 1 of 199813(also known as Third Judges Case): The Third Judge Case of
1998 is not a case but an opinion delivered by the Supreme Court of India while responding
to a question of law regarding the collegiums system, raised by the then President of India K
R Narayanan, in July 1998 under his constitutional power. The question was if the term
“consultation” requires consultation with a number of judges in forming the CJI’s opinion,
or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the
Supreme Court laid down nine guidelines for the functioning of the Coram for
appointments/transfers; this came to be the present form of the collegiums system.

ARGUMENTS AGAINST THE COLLEGIUM SYSTEM:-

Legal experts have pointed out many errors in the collegiums system. Some of them point
out that there is immense administrative burden of appointing and transferring judges
without a separate secretariat or a intelligence gathering mechanism dedicated to gather
and checking personal and professional background of the perspective appointees.

The Law Commission of India headed by Hon’ble Dr. Justice AR Lakshmanan in 2008 made a
recommendation, reviewing the 1993 verdict of the Supreme Court in the Second judge
case. The 18th Law Commission of India in its 214th14 report suggested reconsideration of

(4) SCC 441.

13
In Re Presidential Reference, (1998) 7 SCC 739.
14
http://lawcommissionofindia.nic.in/reports/report214.pdf

lawcommissionofindia.nic.in

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Judges Case I, II and III - S P Gupta Vs, UOI, giving primacy to the judiciary in appointing judges to
the Supreme Court and High Courts to be reconsidered to bring about clarity and consistency in
appointments.
The 18th Law Commission of India headed by Justice AR Lakshmanan in its 230th15
report on judicial reforms reiterated this consideration. It pointed out that in every High Court
“the Chief Justice is from outside the State as per the policy of the government. The senior-
most judges who form the collegium are also from outside the State. The resultant position
is that the judges constituting the collegium are not conversant with the names and
antecedents of the candidates and more often than not, appointments suffer from lack of
adequate information.”16.

15
http://lawcommissionofindia.nic.in/reports/report230.pdf

lawcommissionofindia.nic.in

16
http://www.thehindu.com/todays-paper/tp-national/law-commission-moots-sweeping-
reforms/article201230.ece

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 CONCLUSION

Now, through the 99th Constitution Amendment Bill and the NJAC Bill, Parliament has
merely sought to realign the process of judicial appointments in agreement with a general
principle separation of powers. It is therefore surprising to note that bills have met such a
disagreement from a important quarters. Notwithstanding to the opposition from critics,
the proposed laws will replace a failed system of the judicial appointments with a process
that is in agreement with the ideals of the Constitution. The composition of the NJAC may
not be perfect, but it is in the favor of the Judiciary. During appointment of judges, If any
two of three judges on the panel believe that a candidate is unsuitable for appointment,
they can together veto the elevation of such a nominee. The Union Government on the
other hand merely has a single vote in the NJAC and cannot, by itself, place a constraint on
any appointment. It will require a backing of either one of the judges or one of the ‘eminent
persons’ for the government to counter any nomination.
Therefore we can say that any fear that the composition of
the NJAC will give an unrestrained power in the executive is unfounded.
It is worth noting that in the US, judge selection is entirely a political process (existing
judges have no say) and in Britain (for England and Wales), the 15-member Judicial
Appointments Commission has 15 members, among whom only five are judges. The
chairman of the JAC is a lay person, and not a judge. In contrast, in the Indian NJAC, the CJI
is the head. There is no way anyone can say the new law diminishes the judiciary.

As the US and UK examples show, globally it is not judges

who appoint judges. Moreover, democracy means laws are made by elected
representatives, and not judges. Judges only have to interpret the laws and check if they
impinge on the basic freedoms guaranteed by the constitution. In recent years, judges have
been foraying into everything, including policy (as in the 2G judgment, when the judges said

25 | P a g e
natural resources can only be sold through auctions), due to the general loss of faith in
politicians. But voters elect the same politicians. It cannot be any job of the judiciary to
thwart the people’s will. The will of the people means the right to change the laws – as long
as they are not in contravention of the basic features of the constitution.

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 BIBLIOGRAPHY

LIST OF BOOKS REFERRED: -

The Constitution of India; by S. Sarkar & J.J.Munir

the Keshavnanda Bharati Case; by T.R. Andhyarujina
Political Theory (Principles of Political Science); by R.C. Agarwal

LIST OF NEWSPAPERS REFERRED:-

THE HINDU
THE INDIAN EXPRESS
THE TIMES OF INDIA
DAINIK BHASKAR
DECCAN CHRONICLE

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 LIST OF SITES REFERRED: -
www.wikipedia.org
www.prsindia.org
www.lawcommission.gov.np
www.thehindu.com
www.thetimesofindia.com
www.deccanchronicle
www.loksabha.com
www.supremecourtofindia.nic.in
www.indiakanoon.in
www.

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