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Wednesday, September 22, 2021

Appointment of judges: 34-year stop-start battle of interpretation

Articles 124 and 217 of the Constitution have been subjected to scrutiny and interpretation in the SC.

Written by Utkarsh Anand |
Updated: October 16, 2015 2:00:58 pm
njac, supreme court, narendra modi, judicial appointment, nda, NDA government, supreme court NJAC, bjp government, modi government, mukul rohatgi, National Judicial Appointments Commission, india news, indian express NJAC is the second attempt by an NDA govt to change the way judges are appointed. The case may well land up before an 11-judge bench of the SC.

The National Judicial Appointments Commission (NJAC) signifies a paradigm shift in the manner that judges of the higher judiciary have been appointed in the last 22 years. The government’s actions have been perceived by some in the legal fraternity as an attempt to interfere with the independence of the judiciary. The government received the overwhelming support of Parliament and state legislatures in framing the law, which must now pass muster with the Supreme Court.

Notably, the appointment of judges has reached the top court for adjudication earlier too. Articles 124 and 217 of the Constitution have been subjected to scrutiny and interpretation.

WATCH VIDEO: A Report On SC Striking Down NJAC, Reviving Collegium System Of Appointing Judges


Article 124 says the President should appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court as he/she may deem necessary. The Chief Justice of India is to be consulted in all appointments barring his/her own.

Article 217, which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned. Neither of the provisions speaks about a collegium.

Article 124 came up for interpretation for the first time in 1981. In S P Gupta Vs President of India, also known as the ‘First Judges Case’, the SC ruled that the recommendation made by the CJI to the President can be refused for “cogent reasons”, thereby tilting the scales in favour of the executive.

The judgment showed that Article 124 was amenable to interpretation by distinguishing between the role and authority of the executive and judiciary — and that one of them could be seen as having a greater say.

The judgment was called in for reconsideration in what is called the ‘Second Judges Case’. The decision by a nine-judge bench in the Supreme Court Advocates-on Record Association vs Union of India case in October 1993 led to the creation of the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in appointments. It overturned S P Gupta, saying: “The role of the CJI is primal… because this being a topic within the judicial family, the executive cannot have an equal say… Here the word ‘consultation’ would shrink in a mini form. Should executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under pertinent constitutional provisions. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.

In response, the Supreme Court laid down 9 guidelines for the functioning of the coram for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This came to be known as the ‘Third Judges Case’.

The NJAC is the second attempt by an NDA government to change the way judges are appointed. The BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the collegium system. The commission opined in favour of change, and prescribed an NJAC consisting of the CJI and two seniormost judges, the law minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI.

When the NDA came to power with a thumping majority last year, it had NJAC as one of its priorities, and got the constitutional amendment and NJAC Act cleared swiftly. A clutch of petitions were subsequently filed in the SC, arguing that the law undermines the independence of the judiciary, and the basic structure of the Constitution. The case, currently before a five-judge bench, may well land up before an 11-judge bench.

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