DOES THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT

ENSURE THE INDEPENDENCE OF THE INDIAN JUDICIARY?

RACHANA RAUTRAY & SATCHIT BHOGLE

NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA
 INTRODUCTION

The legislature, by passing the Constitution (Ninety-ninth Amendment) Act, 2014 and the

National Judicial Appointments Commission Act, 2014 1 provides for the creation of a

National Judicial Appointments Commission (NJAC) to replace the judge-made collegium

system that has existed for 22 years. 2 Owing to the controversy surrounding the Acts, they

were not notified until earlier this year.3 Both the NJAC and its predecessor, the collegium,

have been controversial. Detractors of the NJAC insist that the creation of the body threatens

the independence of the judiciary,4 while its proponents argue that the collegium is

undemocratic, unconstitutional, and unaccountable.5 Recently, it has been suggested that the

sister of a former Chief Justice of India was unfit to be elevated to the position of High Court

judge and the opposition of which cost a sitting High Court judge elevation to the Supreme

Court.6

Lawyers have been hotly divided on this issue, with the Supreme Court Bar Association

(SCBA) supporting the NJAC,7 and the Supreme Court Advocates-on-Record Association

and Bar Association of India opposing it. 8 Despite this division, the Supreme Court on

October 16th, 2015 in a majority decision by a five judge bench found that such a

Commission would intrude upon judicial independence, by making the role of the judiciary

ornamental and thereby infringing upon the basic structure of the constitution. In addition, it
1
The National Judicial Appointments Commission Act, 2014 (Act 40 of 2014).
2
Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441.
3
“National Judicial Appointments Commission Act Notified” Press Information Bureau, Apr. 13, 2015.
4
“Does NJAC Bill curb independence of judiciary?” The Hindu, Aug. 25, 2014.
5
Ram Jethmalani, “Needed, National Judicial Commission” The Sunday Guardian, available at:
http://www.sunday-guardian.com/analysis/needed-national-judicial-commission (Last visited on September
17, 2015).
6
Appu Esthose Suresh and Maneesh Chhibber, “Lost SC berth for opposing HC judgeship for CJI Kabir’s
sister: Guj CJ” The Indian Express, Jul. 24, 2013; Utkarsh Anand, “Why was lawyer kin of then CJI made
High Court judge, government asks Supreme Court” The Indian Express, May 7, 2015.
7
“Supreme Court Bar Association supports NJAC Act meant to replace collegium system” IBN Live, Mar.
19, 2015.
8
“NJAC Act violates ‘basic structure’ of Constitution, Bar bodies tell Supreme Court” DNA, Apr. 28, 2015.

2
found that the inclusion of members of the executive was questionable and contrary to

arguments presented by the Parliament, it is the Constitution and thereby the basic structure

that represents the will of the people and not Parliament.

In this paper, we seek to address whether in light of the developments illustrated above, the

National Judicial Appointments Commission ensures the independence of the judiciary. In

order to do so, we first, identify the relationship between judicial appointment and judicial

independence, by tracing its history to the power struggle between the judiciary on one hand

and the legislature and executive on the other; second, we analyse the extent of amending

powers of Parliament so as to determine whether an amendment setting up the NJAC is

within the basic structure of the Constitution. Third, we shall debunk the misconception

amongst the public of the threat the NJAC poses and the drawbacks of the collegium system;

fourth, on doing so, we shall highlight that the NJAC does in fact protect independence by

incorporating the principles of accountability and transparency and hence is a viable

alternative to the collegium system within the present constitutional scheme.

RELATIONSHIP BETWEEN JUDICIAL APPOINTMENT & JUDICIAL INDEPENDENCE

The Framers of the Constitution stated in a memorandum that the highest importance must be

accorded to independence and integrity of the judiciary in a democratic system of

government, especially because the citizens at large may have to seek redress in the last resort

in the Courts of law against any illegal acts or the high-handed exercise of power by the

executive.9 To further this intention, Dr. B.R. Ambedkar in the Constituent Assembly

Debates stated that independence of the judiciary was “of the greatest importance” and that

9
B. Shiva Rao and Subhash C. Kashyap, The Framing of India’s Constitution: Select Documents 196
(Universal Law Publishing Co., Delhi, 2004).

3
there could be no difference of opinion that the judiciary had to be “independent of the

executive.”10 Yet despite this intention, history has evidenced an apparent power struggle

between the judiciary on one hand and the executive in the other.

This struggle may be traced to events leading up to the creation of the collegium system. Our

political history, has exhibited that at some stage, the executive has interfered with the

process of justice, by instilling such fear or favour. The biggest impact was felt when

Parliament sought to take policy decisions that necessitated substantial and significant

amendments to the Constitution. In light of this, in the landmark decision of Kesavananda

Bharati,11 it was held Parliament’s power to amend the Constitution was not unlimited. The

aftermath however, led to the superseding of three eminent judges, i.e., Justices Hegde,

Shelat and Grover, in favour of Justice A.N. Ray, who had dissented against the majority. 12

During that period, several additional judges in the High Courts were also denied

confirmation of their appointment or were given extensions for short periods. 13 This trend

continued even after Emergency, wherein there was a more blatant disregard of judicial

independence through interference in judicial appointments leading to the decision of Three

Judges’ Cases14 and the establishment of the collegium system that is followed today. Despite

the existence of the collegium, the Constitution being a dynamic piece of legislation does

empower the Executive to amend it and thereby leaves the question of procedure of

appointment of the judiciary uncertain.

THE POWER OF PARLIAMENT TO AMEND THE CONSTITUTION

10
Constituent Assembly Debates 1, 24 May 1949, vol. VIII.
11
(1973) 4 SCC 225
12
Supreme Court Bar Associatoin, “Long March of The Supreme Court Bar Association”, available at:
http://www.lexsite.com/services/network/scba/history.shtml (Last visited on September 17, 2015.
13
Id. at 111.
14
S.P. Gupta v. President of India [1982] 2 SCR 365; Supreme Court Advocates on Record Association v.
Union of India (1993) 4 SCC 441; In re Presidential Reference number 1 of 1998 (1998) 7 SCC 739.

4
Article 368 of the Constitution makes it clear and unambiguous in stating that any provision

of the Constitution may be amended. Any limitation on the power are found within the

Article alone, that is Article 368(2) and no other. However, most constitutions, including

India's, are framed in general terms, and therefore, their construction requires going, beyond

the words of the document.15 Hence on apply the rules of construction16, if the intention of the

drafters leads to an absurdity or inconvenience,17 construction that ensures a smooth and

harmonium working of the Constitution must be adopted. 18

The Constituent Assembly Debates on Article 304 of the Draft Constitution 19 show that the

Assembly was in favour of a flexible constitution capable of being amended without great

difficulty. 20 Nevertheless, though the Constituent Assembly Debates show that the members

of the Assembly were keen that future Parliaments have an unrestricted amending power, this

was not to the extent that the power could dislocate the delicate balance of the powers

between the organs of the State, which would make one organ subordinate to the other, and

lead to the very despotism the framers wished to avoid. 21

The judges in Kesavananda Bharati variously held that Parliament's power to amend the

Constitution did not extend to altering the “basic structure” of the Constitution. Chief Justice

Sikri held that the word “amend” in Article 368 carried a narrow meaning that did not extend

to “destroying the democratic structure of the Constitution, and the basic inalienable rights

15
Mool Chand Sharma, Justice PN Bhagwati, Court, Constitution and Human Rights 10 (Universal Book
Traders, Delhi, 1995); McCulloch v. Maryland 17 US 316 (1819).
16
S.C. Barat v. Pataskar AIR 1962 MP 73; Shantilal Ambalal Mehta v. N.A. Rangaswamy (1977) Mah LJ 587.
17
M.N. Rao and Amitha Dhanda (eds.), N.S. Bindra’s Interpretation of Statutes 1263 (LexisNexis
Butterworths, 10th edn., 2007).
18
Chandra Mohan v. State of Uttar Pradesh AIR 1966 SC 1987; Shakuntala S. Tiwari v. Hemchand M.
Singhania AIR 1987 SC 1823; Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu AIR 1979 SC 193; State
of Karnataka v. Union of India AIR 1978 SC 68; Moinuddin v. State of Uttar Pradesh AIR 1960 All 484,
494.
19
This Article becomes Article 368 subsequently when the Constitution was adopted.
20
Constituent Assembly Debates 4, 17 September 1949, vol. IX, 1651.
21
Id. at 135-136.

5
guaranteed in Part III, and without going outside the contours delineated in the Preamble.” 22

Amongst several principles, judicial independence was one such principle that was

deliberated upon while determining the contours of basic structure.

JUDICIAL INDEPENDENCE AS A BASIC FEATURE OF THE CONSTITUTION

The Court in State of Karnataka v. Union of India23 stated that the basic features of the

Constitution have to be located within the written provisions of the Constitution. 24 Though

the Indian Constitution does not expressly provide for a separation of powers between the

judiciary, legislature and executive, it sufficiently differentiates the functions of these three

branches of the state machinery. 25 It therefore flows that our Constitution does not

contemplate assumption of the functions of any organ of the government by another. 26 An

independent judiciary free from executive control, even at the level of the Supreme Court,

can be traced to various provisions in the Constitution.

In addition to the provisions in the Constitution, the Supreme Court, being the ultimate

interpreter of the Constitution,27 has held on several occasions, especially since Kesavananda

Bharati, that any attempt to curtail the basic feature of independence of judiciary, whether

directly or indirectly or even through a Constitutional amendment, is invalid. 28 In S.P.

Gupta  v.  Union of India, Justice Bhagwati observed that “The concept of independence of

22
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, para 209 (Sikri CJ).
23
State of Karnataka v. Union of India, AIR 1978 SC 68.
24
Id.
25
M.P. Jain, Indian Constitutional Law 360 (Samaraditya Pal and Ruma Pal (eds.), LexisNexis Butterworths
Wadhwa, Nagpur, 6th edn., 2010).
26
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, 556.
27
State of Rajasthan v. Union of India (1978) SCR 1, 80-81.
28
See Shri Kumar Padma Prasad v. Union of India & Ors. (1992) 2 SCC 428, 446, 456 (Kuldip Singh J); S.P.
Gupta v. Union of India [1982] 2 SCR 365; Supreme Court Advocates-on-Record Association v. Union of
India (1993) 4 SCC 441; L. Chandrakumar v. Union of India (1997) 3 SCC 261; Indira Nehru Gandhi v.
Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India (1980) 3 SCC 265; P. Sambamurthy v.
State of Andhra Pradesh, AIR 1987 SC 663; Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.

6
the judiciary is a noble concept which inspires the constitutional scheme and constitutes

the foundation on which rests the edifice of our democratic polity.”29

The reason for such paramount importance being given to the independence of judiciary can

be culled from the concurring opinion of Justice Pandian in Supreme Court Advocates-on-

Record Assn. v. Union of India.30 He stated that an independent judiciary is needed so as to be

unbending before all authorities and uphold the imperatives of the Constitution at all times,

thereby preserving judicial integrity.31 Therefore, the “independence of the judiciary” is part

of the basic structure of the Indian Constitution which cannot be abrogated.

Hence, it is established that Parliament has the power to amend the Constitution but such

power is not unlimited so as to abrogate its basic structure. The following sections will

therefore establish that the Parliament by enacting the NJAC Act has acted within the limits

of such basic structure and does in fact ensure complete judicial independence by inculcating

accountability and transparency.

DEBUNKING THE CRITICISMS OF THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION

A corollary to independence is accountability, wherein a lack of accountability due to

32
‘independence’ could amount to a derailment of other constitutional principles. Under

Schedule III of the Constitution, judges must carry out their duties without fear or favour,

and implicit in this is resistance to influence or temptation. Therefore a judge or the judiciary

can never truly be independent or possessed of integrity without being able to account of

29
S.P. Gupta v. Union of India [1982] 2 SCR 365, para 26.
30
Supreme Court Advocates-on-Record Assocation v. Union of India (1993) 4 SCC 441,525, para 63.
31
Union of India v. R. Gandhi (2010) 11 SCC 1[49], quoting Supreme Court Advocates-on-Record
Association v. Union of India (1993) 4 SCC 441,525, para 63.
32
H.R. Khanna, “Independence of the Judiciary” 3 SCC 15 (1981); Union of India v. Sankalchand Himatlal
Sheth (1977) 4 SCC 193, para 91 (citing Dennis v. United States 341 US 494 (1951).

7
itself.33 On an examination of the Constitution, it is evident that fetters exist against

unconstitutional exercise of power by the executive and legislature, but are lacking for the

judiciary. In fact, self-restraint is the only fetter to judicial power. 34 Despite this, there existed

an enchantment with the judiciary of “credibility and reliability” due to the failings of the

executive. 35 However this enchantment has diminished in recent times. 36

In this section, we

seek to address that the NJAC does not shift accountability of the judiciary from citizens of a

State to the executive thereby permitting excessive executive interference.

The judiciary must be accountable to the citizens of a State. 37 For justice to be done, citizens

must perceive fairness and independence in the functioning of the justice system, i.e. justice

must also be seen to be done.38 A lack of perceived fairness would result in a lack of

confidence in the judiciary by the public. The primary reason for the collegium system being

an accepted procedure for appointment was based on the guise of neutrality. However, every

judge is human and hence cannot be exempt from imperfections reflected through his

sectional interest such as gender, economic class, etc.39 These imperfections may be either

accepted as subjectivity, which is celebrated, or bias, which becomes problematic for a

judicial institution.40

In light of the above, the role of a judge must be examined. While the constitution is suprema

lex, it is the Supreme Court that is its ultimate interpreter, including defining the limits of the
33
Tun Mohamed Dzaiddin Abdullah, “Judges as trustees must give an account for their conduct” in Cyrus Das
and K. Chandra (eds.), Judges and Judicial Accountability 7 (Universal Law Publishing Co., Delhi, 2004).
34
United States v. Butler, 287 US 1 (1936) (Stone J).
35
Ravi Kiran Jain, “Constitutional Amendment Bill will curtail Judicial Independence” in Santosh Paul (ed.),
Choosing Hammurabi: Debates on Judicial Appointments 130 (LexisNexis, Bahadurgarh, 2013).
36
T.S. Krishnamurthy, “Ending ‘VIP culture’ in public governance” The Hindu, Dec. 17, 2013.
37
Robert H. Alsdorf, “Judicial Accountability: An Elected Judge’s Perspective” in Cyrus Das and K. Chandra
(eds.), Judges and Judicial Accountability 132 (Universal Law Publishing Co., Delhi, 2004).
38
Ibid.
39
S.P. Gupta v. President of India [1982] 2 SCR 365, para 26 (Desai J); Constituent Assembly Debates, 4
August 1949, vol. IX.
40
Ruma Pal, “An Independent Judiciary” in Santosh Paul (ed.), Choosing Hammurabi: Debates on Judicial
Appointments 15 (LexisNexis, New Delhi, 2013).

8
power of each branch of the State.41 In Supreme Court Advocates-on-Record Association v.

Union of India,42 it was held that on a reading of Article 50 of the Constitution, the Chief

Justice is the prime appointing authority for the judiciary, 43 whereas a plain reading of the

article and the Constituent Assembly Debates show that this question is contestable. In fact,

Constituent Assembly left the prerogative of determining procedure of consultation open. 44

Another assumption made is that as members of the judiciary are in minority in the

composition of the NJAC, there are dangers of political ideologies ultimately guiding judicial

decisions due to executive interference. At present, it is assumed that the judiciary exercises

its powers independent of either the executive or the legislature based on the principle of

separation of powers. 45 An example of such separation is illustrated through the bar on the

Supreme Court of the United States on providing advisory opinions. 46 In India, such a strict

division is clearly absent, as the Supreme Court under Article 143 of the Constitution permits

such opinions. Another illustration of the distinction between the laws in the United States

and India, is found in the very nature of the office of the President. In the United States, the

President is responsible to the people electing him and not the Congress. 47 However, in India,

the President acts on the advice of his Council of Ministers which wields real executive

power placing an obligation on the President to follow.48 Therefore, the President’s

satisfaction is in reality the satisfaction of the Council of Ministers. These members of

Council are also part of either house of Parliament and therefore there is no separation of
41
Shyamlha Pappu “Appointment, Transfer and Removal of Judges” in Subhash C. Kashyap (ed.), The
Citizen and Judicial Reforms under Indian Polity 147 (Universal Law Publishing Co., New Delhi, 2003);
State of Rajasthan v. Union of India [1978] SCR 1, 80-81
42
Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, 550.
43
M.P. Singh, “Securing the Independence of the Judiciary – The Indian Experience” 10 Indiana Int’l &
Comp. L. Rev. 245, 251 at fn. 20 (2000).
44
Constituent Assembly Debates, 23 August 1949, vol. VIII, 258.
45
Durga Das Basu and A.K. Nandi, Administrative Law 23 (Kamal Law House, Calcutta, 5th edn, 1998).
46
H.M. Seervai, Constitutional Law of India 649-650 (Universal Law Publishing Co, New Delhi, 4th edn.,
1996, 2012 reprint).
47
H.M. Seervai, Constitutional Law of India 34 (Universal Law Publishing Co, New Delhi, 4th edn., 1996,
2012 reprint).
48
Samsher Singh v. State of Punjab (1975) 1 SCR 814; Constitution of India, art. 74.

9
powers between the Executive and the Legislature. 49 In India, except for an exclusion of

jurisdiction of a court through the Constitution50 or by valid law, there is no ‘prohibited field’

for the judiciary. In fact, the Supreme Court is also an institution of governance, wherein in

absence of parliamentary legislation, it has routinely made law, public policy

pronouncements, held executive bodies accountable, and has directly taken over supervision

of executive agencies.51 It has also anticipated the effects of particular decisions while

balancing competing values and political aspirations.52 This has been illustrated through the

recent Babri Masjid case, where secularism has been interpreted as a modus vivendi rather

than a set of clear principles. 53 Similarly, the legislature has also internalised judicial law by

enacting laws in line with principles laid out in judgements such as the Right to Food Act.54

Thus, while Article 50 envisages separation, such must be read with reference to its

legislative history and the practice of interpreting separation as one organ not performing or

combining the essential powers of the other. 55 Hence, the scheme of our Constitution is such

that while aspiring towards a separation of powers, it does not subscribe in the strict sense to

Montesquieu’s theory. Hence, the executive participating in the appointment does not in any

way infringe upon the essential functioning of the judiciary.56

Furthermore, the public presumption of arbitrary decisions arising due to executive

interference is also misplaced. First, it was the judiciary that evolved the convention that
49
Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 (Mukherjea CJ).
50
Constitution of India, arts 122(2), 136(2), 194(2), 329A, 329B, 361(1)-(3).
51
Vineet Narain v. Union of India (1988) 1 SCC 226 .
52
Pratap Bhanu Mehta, “India’s Judiciary the Promise of Uncertainty” in Pran Chopra (ed.), The Supreme
Court versus the Constitution 155 (Sage Publications, New Delhi, 2006).
53
Pratap Bhanu Mehta, “India’s Judiciary the Promise of Uncertainty” in Pran Chopra (ed.), The Supreme
Court versus the Constitution 164 (Sage Publications, New Delhi, 2006); Pratap Bhanu Mehta, “The Rise of
Judicial Sovereignty” in Sumit Ganguly, Larry Diamond and others, The State of India’s Democracy 113
(John Hopkins University Press, Baltimore, 2007).
54
People’s Union for Civil Liberties v. Union of India (2004) 2 SCC 476.
55
Law Commission of India, 14th Report on Reforms of the judicial administration 851-852 (September,
1958).
56
State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640, para 114.

10
appointments to the position of Chief Justice of India would be on the basis of seniority, even

though this rule has no constitutional basis and is neither based on age nor experience. 57 In

fact, Articles 126 and 223 allow for the appointment of the acting Chief Justice from one of

the judges of the respective court and not the ‘senior most’ judge even if such position is

temporary.58 Furthermore, despite the existence of both the seniority rule and the collegium

system, there are still controversies over the elevation of relatives of judges or the irrational

transfer of judges,59 while over as many as 384 vacancies remain in other High Courts,

despite filings for appointment being made months prior to vacancies arising.60

Justice Khanna while writing on the independence of the judiciary states that judges are

drawn from a pool of law students who, given their immediate surroundings, necessarily have

a particular political stance.61 They subsequently form the Bar, and therefore, the judiciary to

a certain extent would also encompass these views.62 However, mere political inclination

which is inherent in the system is not akin to bias and the fact that some members of the

NJAC may represent a specific political standpoint, does not imply that the judge would be

similar political biases. Therefore, the presence of members of the Executive in the NJAC

cannot be a ground to strike down a law.63

THE NJAC BALANCES ACCOUNTABILITY AND INDEPENDENCE

57
In terms of age, several judges reach their age of retirement without attainting a ‘seniority’ status much less
being the Chief Justice. Similarly, while S.M. Sikri had only seven years of judicial experience and A.N.
Ray fourteen, the latter was considered junior
58
A.R. Antulay, Appointment of a Chief Justice (Popular Prakashan Publishing, Bombay, 1973).
59
Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (Oxford
University Press, New York, 1999); Appu Esthose Suresh and Maneesh Chhibber, “Lost SC berth for
opposing HC judgeship for CJI Kabir’s sister: Guj CJ” The Indian Express, Jul. 24, 2013; Utkarsh Anand,
“Why was lawyer kin of then CJI made High Court judge, government asks Supreme Court” The Indian
Express, May 7, 2015; Manoj Mitta, “Fali slams SC panel for ignoring judge who penned gay verdict” The
Times of India, Nov. 20, 2009; “Meet Justice UL Bhatt: the first martyr of the collegium system” Firstpost,
Jul. 31, 2013; “Of punishment postings transperancy” Bar & Bench, Mar. 9, 2010
60
“High Courts Face Judge Crunch With 384 Vacancies” NDTV, Aug. 19, 2015.
61
H.R. Khanna, “Independence of the Judiciary” 3 SCC 15 (1981).
62
Id.
63
Maganlal Chaganlal v. Municipal Corp. of Greater Bombay, AIR 1975 SC 648.

11
In a democratic framework, seeking merit, ability or integrity is the sine qua non for efficient

functioning and is fundamental, as envisaged by the Constitution in Parts III, IV and IVA of

the Constitution.64 Today, such merit, ability or integrity has been called into question. 65 It is

to address such failings, that the NJAC has been set up in order to guarantee transparency and
66
check individual and institutional bias. This section shall first, exhibit that the NJAC is

within our constitutional framework and second, that such a body will strike a balance

between transparency, accountability and independence.

Scope of setting up the NJAC

Prior to the recommendation by the legislature, to introduce this Commission, precedent has

accepted the need for recommending a body that incorporates wide interests without secrecy
67
to ensure credibility in appointments. However, instead of a clear procedure being

introduced, a collegium system was set up on two flawed assumptions. First, courts

interpreted the term ‘consultation’ to mean ‘concurrence’, hence placing primacy upon the

opinion of the Chief Justice of India, despite disagreements to its introduction in the

Constituent Assembly Debates.68 Second, such concurrence was thereafter interpreted as an

established constitutional rule. 69

64
V.R. Krishna Iyer, “Limits of Judicial Conduct” The Hindu, Aug. 7, 2009, available at: http://
www.thehindu.com/2009/08/07/ stories/ 2009080754240900.htm (Visited on September 15, 2015).
65
Sarojini Ramaswami v. Union of India AIR 1992 SC 2219; See Interview with Prashant Bhushan, Tehelka,
available at: http://www.tehelka.com/story_main42.asp?filename=Ne050909half_of.asp (Visited on
September 15, 2015); Mona Shukla, Judicial Accountability: Welfare and Globalisation (Regal
Publications, New Delhi, 2009).
66
P.P. Rao, “The Constitution, Parliament and the Judiciary” in Pran Chopra (ed.), The Supreme Court versus
the Constitution 72 (Sage Publications, New Delhi, 2006); In re Arundhati Roy (2002) 3 SCC 343; Cyrus
Das, “Judges and Judicial Accountability” in Cyrus Das and K. Chandra (eds.), Judges and Judicial
Accountability 201 (Universal Law Publishing Co., Delhi, 2003).
67
Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, paras 107-108
68
Constituent Assembly Debates, 24 May 1949, vol. VIII.
69
M.P. Jain, Indian Constitutional Law 5 (Samaraditya Pal and Ruma Pal (eds.), LexisNexis Butterworths
Wadhwa, Nagpur, 6th edn., 2010).

12
The distinction between consultation and concurrence is relevant, as this Commission is in

adherence with the former, which was the intent of the drafters of the Constitution. The term

“consult” means “discussion on something together, to deliberate”. 70 Similarly, other

constitutions using the term ‘consultation’ have meant effective and mutual exchange of

views making each party aware of all necessary and relevant facts. 71 The opinion that arises

from such deliberation has been held not to be binding upon the executive. 72 Thereby, the use

of the term ‘consult’ ensures that neither organs of the State have an absolute say on

appointments.73 Further, the interpretation of primacy of appointment vested upon the Chief

Justice of India vitiates the basic principles of constitutional interpretation that prevents a

court to enlarge constructively either conditions or restrictions, if power has been exercised

within the general scope of affirmative words provided within the legislation.74

While there is space for arguing that deference to the seniority convention may have existed

since prior to the drafting of the Constitution, since its adoption, only those legal rules that

are embedded within it are binding.75 Alternatively, if one were to argue that there still

remained scope for constitutional convention, such convention must be accepted by those in

authority.76 In light of this, an analysis of Article 124(2), highlights that the President has

discretion in consulting with other judges, prior to making any appointment. This discretion

has even been exercised in seven cases since the Second Judges Case. 77 Furthermore, as per

70
Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193, para 38.
71
State of Jammu & Kashmir v. A.K. Zakki (1992) Supp (1) SCC 548.
72
Chandramouleshwar Prasad v. Patna High Court (1969) 3 SCC 36.
73
H.M. Seervai, Constitutional Law of India (Universal Law Publishing Co, New Delhi, 4 th edn., 1996, 2012
reprint).
74
R v Burah (1878) 3 App Cas 889, cited with approval in Kesavananda Bharati v. State of Kerala (1973) 4
SCC 225, 1613-14 (Ray J), 1811-12 (Palekar J), 1838 (Khanna J), 1908 (Mathew J), 1879-80 (Beg J), 2041-
42 (Chandrachud J), 2005 (Dwivedi J).
75
M.P. Jain, Indian Constitutional Law 5 (Samaraditya Pal and Ruma Pal (eds.), LexisNexis Butterworths
Wadhwa, Nagpur, 6th edn., 2010).
76
O. Hood Philips and Paul Jackson, Constitutional and Administrative Law 80 (Sweet & Maxwell, London,
7th edn., 1987).
77
Affidavit of Mr. S.K. Bose dated 22nd April, 1993, in Supreme Court Advocates-on-Record Association v.
Union of India (1993) 4 SCC 441, para 373.

13
Mahesh Chandra Gupta v. Union of India,78 the collegium system lacked to ensure the very

transparency for which it was set up, as the system prohibited judicial review on the

‘suitability’ of a judge for either appointment or transfer, irrespective of the grounds for the

review being based on objective grounds or jarring arbitrariness.

In light of the above, the collegium system neither garners force of law nor does it fill the

void for which the body was introduced.

NJAC strikes the balance between transparency, accountability and independence

The need for a balance can be traced in the intent of the constitutional framers that recognized

that every position is vulnerable to human failings, and hence placing appointment in the

hands of the President and Chief Justice of India, ensured that a balance was struck between

competing standpoints. The collegium system eroded this balance by subordinating the

President to the Chief Justice. In contrast, the NJAC takes into account diverse viewpoints by

providing for representation by women and minority communities 79 (who have been

traditionally under-represented on the Supreme Court), and eminent persons80 who may be

experts in sociology, etc. who may provide valuable insights on how to make the composition

of the courts more socially inclusive. The decision arrived at by the Commission is binding

on the President, thereby mitigating any chance of bias on part of the President. 81 In fact, as

per Section 6(6) of the Act, if any two members dissent to any appointment, then such

appointment shall not be made.

78
Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273.
79
The Constitution (Ninety-ninth Amendment) Act, 2014, s. 3
80
Ibid.
81
Registrar, High Court of Orissa v. Sisir Kanta Satapathy (1999) 7 SCC 725; State of Haryana v. Inder
Prakash Anand (1976) 2 SCC 977.

14
Some criticism has been levied against Section 9 of the Act, stating that it permits a situation

wherein no judicial member exists within the Commission leading to arbitrary decisions. This

is a flawed assumption as the proceedings are open to challenge under review, and the

Commission necessarily must seek the opinion of other individuals such as eminent

advocates prior to making any decision.82 The existence of vacancy cannot be the only ground

to invalidate a decision.83 In fact, in the context of the Electricity Act, 2003, even a quorum of

one member in the Rajasthan Electricity Regulatory Commission was not enough to

invalidate the proceedings due to scope of arbitrariness.84 Further, the composition in the

NJAC is such that there are three prominent members of the judiciary, one member of the

executive and two eminent persons who, while being appointed by members of Parliament,

come from different walks of life and must be appointed in concurrence of the Prime Minister

and Leader of Opposition along with the Chief Justice of India, thereby ensuring that the

eminent persons are not mouthpieces of the government. Despite the Act determining the

members of the Commission, the remuneration and tenure of the judicial members, by virtue

of their being judges, remain constitutionally protected. Hence, there is no potential for

external influence being imposed upon them.

Unlike the collegium system, the NJAC guarantees transparency and accountability primarily

as it is a constitutional body and its decisions are subject to judicial review as well as to the

Right to Information Act. Hence, any scope of influence or temptation both in individual

capacity or through the executive is put to check through these instruments.

82
The National Judicial Appointments Commission Act, 2014 (Act 40 of 2014), s. 6(4).
83
Ishwar Chandra v. Satyanarain Sinha (1972) 3 SCC 383, para 5.
84
Ambuja Cements Ltd. v. Rajasthan Electricity Regulatory Commission 2012 ELR (RAJASTHAN) 1146,
para 80.

15
The nature of judicial review is such that it places a check on arbitrary, unjust or

unconstitutional laws, and its application is therefore key to maintain accountability. 85 The

grounds for application of judicial review is to test illegality, irrationality or procedural

impropriety in the decision making process.86 Under the collegium system, while certain

restricted procedural checks on impropriety were permitted, 87 it prevented its application over

its orders under the assumption that the plurality of judges acted as a sufficient check.88

Unlike the collegium, the nature of an NJAC order is like an administrative order, which is

directed to the regulation or supervision of matters as distinguished from an order which

decides the rights of parties or confers or refuses to confer rights and therefore is also subject

to judicial review.89

Alternatively, under the collegium system, while there was scope to challenge the decision of

the President, if made without full and effective consultation, there was a lack of access to

such information. 90 In fact, the lack of access to pertinent information relating to functioning

of various organs of the State, led to the drafting of the Right to Information Act, 2005 (RTI

Act).91 This Act applies to bodies that are established and constituted by a law made by

Parliament.92 As stated earlier, the NJAC falls within its purview, thereby providing access to

any material, including but not limited to opinion, data, records, etc. unless it may be proved

that public interest outweighs the protected interest.93 Therefore, the justification by the

collegium system to prevent access due to such information leading to frivolous petitions, is

85
Arjit Pasayat and C.K. Thakker (eds.), Dr. Chakradhar Jha’s Judicial Review of Legislative Acts 105, 107
(LexisNexis Butterworths Wadhwa, Nagpur, 2nd edn., 2009); Edward S. Corwin, A Constitution of Power in
a Secular State 3-4 (The Michie Company, Charlottesville, 1951).
86
Punjab National Bank v. Astamija Dash (2008) 14 SCC 370, para 39.
87
Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273, paras 41, 71.
88
In Special Reference No 1 of 1998 (1998) 7 SCC 739, para 32.
89
Shankarlal Aggarwal v. Shankarlal Poddar (1964) 1 SCR 717, 718-19.
90
In re Presidential Reference number 1 of 1998 (1998) 7 SCC 739
91
Union Public Service Commission v. R.K. Jain.
92
The Right to Information Act, 2005 (Act 22 of 2005), s. 2(h).
93
Id. at ss. 2(f), 8(ix).

16
also addressed when application of the RTI Act, is permitted upon the NJAC. As the process

of appointment or transfer is a public activity,94 the need for an objective examination body

conducting tests of merit is pre-requisite to ensuring transparency and accountability 95 and

thereby making the judiciary truly independent, a function the NJAC clearly fulfils.

CONCLUSION

The relationship between the judiciary and the legislature and executive has seen some

conflict. The Supreme Court, perceiving threats to its independence, placed restrictions on

Parliament’s power to amend the Constitution, and interpreted Article 50 to give the Chief

Justice of India and his collegium of senior judges primacy in the appointment of judges.

However, the collegium process is opaque and not subject to judicial review, leading to

several suggestions of arbitrariness. On the other hand, the decisions of the NJAC are subject

to judicial review and amenable to the RTI Act.

The composition of the NJAC ensures fairness, restoring the balance of executive and judicial

input on appointments. The Act also negates the possibility of bias by the President by

allowing any two members to veto a decision arrived at by a majority of the Commission. In

addition, the NJAC includes women, members of minority communities, and eminent

persons, who can help ensure that the courts remain socially inclusive and conscious. The

Ninety-ninth Constitutional Amendment also does not affect the security of tenure and

financial security of judges. Hence, it cannot be said that the NJAC Act threatens judicial

independence; on the contrary, it ensures transparency and accountability in making judicial

appointments.

94
“Reveal files on the appointment of judges: CIC to SC” The Indian Express, Nov. 25, 2009, available at:
http://indianexpress.com/article/india/crime/reveal-files-on-the-appointment-of-judges-cic-to-sc/ (Visited on
September 15, 2015).
95
Central Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497.

17
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