Choosing Chief Justice - Collegium or NJAC?

By 2134022 Navaneet K

(The Hindu, 2022)

On 4th November, Union Law Minister Kiren Rijiju criticised the collegium system of
appointing the Chief Justice saying that the judges only appoint those whom they know and
not the fittest person. He also called the system “opaque” and criticised the Supreme Court
for striking down the National Judicial Appointments Commission (NJAC), in 2015. While
the problems in the judiciary could be agreed upon to some extent, the real intention of the
government is questionable.
The Collegium is a system that recommends the appointment of several posts in the
judiciary including the appointment of the Chief Justice. It consists of the Chief Justice and
the four most senior judges of the Supreme Court. The Collegium decision is based on the
seniority of judges, their experience, their arguments in courts and the hearing of pleas
against their judgements. The decision made by the collegium is binding on the President as
per Article 124 of the constitution and the Supreme Court’s interpretation of it in the 1993
Second Judges’ case. The critics of this system say that the system is very opaque. Only a
few individuals in the judiciary have a say in the appointments. Also, there are no criteria for
the assessment of the merits of the judges and is entirely based on the collegium’s opinion of
the judges.
The NJAC on the other hand created a commission that would replace the collegium.
The Commission would consist of the Chief Justice, two senior-most judges of the Supreme
Court, the law minister and two eminent personalities. The Commission was struck down by
the Supreme Court in 2015 calling it ” unconstitutional and void”. It is argued that the NJAC
was a step taken by the government to interfere in judicial decisions.
While transparency in judicial appointments provides a better opportunity for judges,
government interference in the judiciary is a serious issue. There are several reasons why the
collegium system is better than the NJAC.
The Collegium is a historic system. In the SP Gupta case in 1981 also known as the 1st
Judges Case, the SC made a literal reading of the provisions in the constitution and said that
the word “President” in Article 24 meant the executive. Thus, the executive has
predominance in the selection process. But this judgement was reversed in the Second Judges
case in 1993 and Third Judges Case in 1998 when a nine-judge constitutional bench
established the collegium system. The system has been functioning for decades as opposed to
the attempts made by the government to alter the system.
As put forward by Kaleeswaram Raj, Lawyer of Supreme Court in his article
“Choosing the Umpires of Democracy” in “The New Indian Express”, the NJAC itself is not
transparent. The Constitution is an organic body. There are many areas that are left to the
people to decide and implement through their representatives and institutions. The 99th
constitutional amendment which established the NJAC does not mention who will have the
final say when there is a tie on the decision made by the members. Also, the commission is
not democratic since civil society has no say in the selection process.
The collegium system provides maximum independence from the executive. When
the selection process is confined to the four walls of the collegium, the chances of
interference from the government are less. The government has several means through which
it can influence the decisions in the courts. Already it is having the control of transfer of
judges and several other appointments. Moreover, the more exclusive the decision-making is,
the better the decision. The Supreme Court judges are experts in their field and are observing
the hearings in the various courts of the country. Any form of dilution in this system at this
nascent stage is just another form of intervention of the government into the working of the
judiciary.
As long as the judicial system follows the ideals of democracy and fulfils its function
of granting justice, the way of appointment of the judges and the chief justice is of secondary
importance. Any intervention in its functioning by the government is a much graver issue.
The problem of lack of opportunity for several judges may be true and needs a proper
solution. But the NJAC is not the solution. The Parliament and the Government have the
power to legislate laws for the appointments according to Article 124 of the constitution. But
such laws need to be legally valid and should not interfere with the independence of the
judiciary.
References
Garg. (n.d.). Collegium System in India. Collegium System in India. Retrieved November 17,
2022, from https://legalserviceindia.com/legal/article-3681-collegium-system-in-
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Raj. (2022, November 9). Choosing the umpires of democracy. The New Indian Express. Retrieved
November 17, 2022, from
https://www.newindianexpress.com/opinions/2022/nov/09/choosing-the-umpires-of-
democracy-2516420.html
Chowdhury, & Keane. (2021, December 21). From checks and balances to compliance: How
the judiciary has responded to government pressure. Scroll.in. Retrieved November
17, 2022, from https://scroll.in/article/1013211/from-checks-and-balances-to-
compliance-how-the-judiciary-has-responded-to-government-pressure
Krishnankutty. (2022, November 5). “Very upset about it”: Law minister Rijiju criticises SC
order to keep sedition law in abeyance. ThePrint. Retrieved November 17, 2022, from
https://theprint.in/judiciary/very-upset-about-it-law-minister-rijiju-criticises-sc-order-
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Kaur. (2015, August 11). All you need to know about NJAC. The Mint. Retrieved November
17, 2022, from https://www.livemint.com/Politics/rcsu24yGQ0frdanyQ9fVVL/All-
you-need-to-know-about-NJAC.html
Law Minister Rijiju Once Again Criticises “Opaque” Collegium System. (n.d.). The Wire.
Retrieved November 17, 2022, from https://thewire.in/government/kiren-rijiju-
supreme-court-collegium-system-opaque-criticism
Collegium System Here to Stay, Nothing Wrong With it: Ex CJI U.U. Lalit. (2022, November
14). The Wire. Retrieved November 17, 2022, from https://thewire.in/law/collegium-
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Anand. (2022, October 18). Law minister Kiren Rijiju’s comments on judges, collegium
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