Impact of NJAC Judgment and the Collegium System

A Constitution Bench of the Supreme Court struck down the 99th Constitution amendment
which introduced the National Judicial Appointments Commission (NJAC) to replace the
collegium system for appointment of judges.

By 4:1 majority, the Court ruled that supremacy of judiciary in the matter of judges’
appointment is necessary to preserve judicial independence. However, the Court also
acknowledged the "failings" of the collegium system, taking note of allegations such as side-
lining of deserving persons, nepotism, purposeful delay in appointments etc. "These
allegations certainly call for deep introspection as to whether the institutional trusteeship has
kept up the expectations of the framers of the Constitution", Justice Kurian Joseph observed
in his judgment.

"Therefore, the Collegium system needs to be improved requiring a glasnost and a

perestroika, and hence the case needs to be heard further in this regard", he added.

The Court admitted that there was a need to improve the Memorandum of Procedure for
appointment of judges to bring in more transparency and efficiency. Two months later, the
bench issued guidelines to the Central Government to finalize a draft MoP (Memorandum of
Procedure) for improving the Collegium system by taking into account factors such as
eligibility criteria, transparency, establishment of a permanent secretariat at High Courts and
Supreme Courts to streamline appointment process, appropriate mechanism to deal with
complaints against recommendees etc.

Memorandum of Procedure- The bone of contention.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not
been very smooth between the Centre and the Supreme Court of India. The then Union Law
Minister Arun Jaitley criticized the NJAC judgment as "tyranny of the unelected".

In this backdrop, the Centre was not receptive of the SC's directions to bring in a new MoP
for improving the Collegium system. In fact, there were even talks of a new law to replace
the NJAC struck down by SC.
There was apparent bitterness between the judiciary and centre on this issue, and the MoP
was not given much priority by the Government. Because of the stand-off between the
Government and the Collegium about MoP finalization, judicial appointments were getting
delayed. The Centre has dragged its feet on the Collegium recommendations regarding
judges' appointments and transfers. Therefore, many of the High Courts witnessed high
percentage of judicial vacancies. Later, the Centre formulated a draft MoP, which included a
contentious clause enabling the Centre to reject a candidate on the ground of 'national
security', suspected to be a veto in disguise. The draft MoP by the Centre suggested that the
Attorney General and the Advocate Generals of the respective states should have a say in the
matter of selection. Retired judges' involvement, too, was suggested. But the Collegium
rejected these recommendations in the draft MoP.

In the wake of the stalemate, the Collegium recommendations got stuck at the Ministry,
without further movement. Centre's delay in processing the Collegium recommendations
caused much anguish to the then CJI T. S. Thakur. A Bench headed by him did not mince
words in expressing its unhappiness over the 'logjam' in appointing judges. "The collegium
has cleared 75 names of high court judges (for transfer/appointment) but they have not been
approved. I don't know why, where these files are stuck", a much disturbed CJI asked the
then Attorney General Mukul Rohatgi.

While speaking at a public function in which PM Narendra Modi was also attending, CJI
Thakur made an emotional appeal to the Centre to act promptly on judicial appointments and,
in fact, broke down to tears during his speech. Neither his criticism nor his crying, so to say,
moved the Government. Then came Justice J. S. Khehar. He expressed dissatisfaction at how
the Centre was delaying appointments. As the CJI, he was prepared to consider the issue on
the judicial side by adjudicating the PILs seeking expeditious filling up of judicial vacancies.
The then Attorney General, Mukul Rohatgi, objected to the PILs stating that it was a matter
to be dealt with by the administrative side of the judiciary and not its judicial side. "We
cannot run away from our own cause when they (citizens) are projecting the cause of the
judiciary.", the Bench observed, overruling the AG's objections.

During May 2017, the SC collegium led by the then CJI Khehar finalized the MoP,
conceding to the Government's demand that it could veto a candidate on the ground of
'national security'. The Supreme Court also gave up its objections to the Centre's proposal for
setting up secretariats to deal with judicial appointments. Even though the SC Collegium has
cleared the MoP, the Centre has not returned its word on it and has kept it pending claiming
that it's studying the matter.

On 27th October, 2017, a Division Bench comprising Justice A. K. Goel and Justice U. U.
Lalit sought the Government's response, in a petition filed by R. P. Luthra, regarding the
steps being taken to finalize the MoP to appoint judges. The letter reads: R.P. Luthra's
petition, later, did not get posted before the same Division Bench that heard the matter first;
instead, it was posted before a three judge-bench presided by the then CJI Dipak Misra. Even
the hearing date fixed by the earlier DB was advanced. The CJI-Bench dismissed the matter,
recalling the order passed by the Division Bench on 27th October. The Bench observed that
there was no need to proceed with the matter because of a Constitution Bench's earlier
decision.

In February 2018, the Centre said in the Lok Sabha that the finalization of MoP will take
more time. P.P. Chaudhary, the then Minister of State for Law and Justice and Corporate
Affairs said that the Centre had written to the Secretary General of the Supreme Court on 11
July, 2017, highlighting the need to improve the draft MoP in the wake of the SC judgment in
the case of Justice C. S. Karnan. There has been no further progress on the issue ever since,
and the appointments are being made as per the previous MoP which was formulated way
back during the times of former CJI J S Verma.

What has NJAC judgment achieved?

Four years down the line, it is relevant to ask what has the NJAC judgment achieved with
respect to institutional reforms. The Centre has been acting with increased one-upmanship in
the matter of judicial appointments, considerably eroding the supremacy of Collegium. There
are several instances of the Centre giving a cold shoulder to Collegium recommendations.
Even the reiterations made by the Collegium, which are binding on the Centre as per the
Second Judges' Case decision, were ignored by the Centre in some cases.

It also seemed that the Collegium was bowing to the executive pressures in many cases such
as the elevation of Justice K M Joseph, transfers of Justice Jayant Patel and Justice Akil
Kureshi. Due to the lack of guidelines regarding a timeline for acting on Collegium
recommendations, the Centre is selectively delaying action on certain files. There is no
consistent pattern in the responses of Central Government to Collegium reiterations. In some
cases, they are accepted soon; in some cases, they are accepted after several months; and in
most cases, they are kept pending for several months.

Since Collegium's reiteration is binding on the centre, its selective delay in acting on the
same can only be construed as a colourable exercise of power to scuttle judicial
appointments. This makes out a case for setting a timeline for a decision on reiterations.

The recent controversy regarding the transfer proposals of Justice Tahilramani (former
Madras HC CJ) and Justice Kureshi indicates that the system continues to be steeped in
opaqueness, despite the appeals by Justice Kurian Joseph for a "glasnost" and "perestroika".
It may not be wrong to conclude that the status quo with respect to the 'failings' of collegium
system continues, even four years after NJAC verdict. At the same time, there has been
gradual erosion of judicial supremacy in the matter of appointments, with the consistent
incursions of the political executive.