The row over the discovery of wads of currency notes at the residence of Delhi High Court judge Justice Yashwant Varma last week has given the debate on judicial appointments a new lease of life.
The mechanism, struck down by the SC in 2015, would have given the government a foot in the door in appointing judges to the higher judiciary. Can it be brought back?
Judicial appointments
In 1950, sitting federal court judges were transferred to the newly established Supreme Court. Justice Harilal Kania, who headed the federal court, became the first Chief Justice of India (CJI).
For the next 27 years, the executive made appointments to the higher judiciary. And although a socially conservative judiciary struck down several laws, prompting Parliament to repeatedly amend the Constitution, this tussle barely affected the process of appointments.
Things changed in the 1970s, when the Indira Gandhi-led Congress government decided to tinker with the seniority norm in choosing the Chief Justice of India. Superseding three judges, Justice A N Ray was appointed CJI in 1973. Again in 1977, Justice M H Beg was appointed CJI, overlooking Justice H R Khanna, who was first in seniority.
As a response to the executive’s Emergency-era interference with judicial appointments, the SC, in subsequent rulings, evolved the collegium system of appointments.
The collegium system
The collegium system of appointing judges evolved through three significant verdicts of the Supreme Court — what are colloquially known as the First, Second, and Third Judges Cases.
Although the Constitution does not mention the collegium system, these three cases debated the language of Articles 124(2) and 217(1), which deal with the appointment of judges to the Supreme Court and High Courts respectively. The cases established that the collegium, headed by the CJI, will be given primacy when it comes to appointing judges to the higher judiciary.
The court reasoned that because it preserves judicial independence, the judiciary’s primacy in appointing judges is part of the basic structure of the Constitution.
The SC collegium is headed by the CJI, and comprises the four other senior-most judges. Since 1993, this collegium has made recommendations to the government for the appointment of judges to the SC, the appointment of Chief Justices of the High Courts, and the transfer of judges of High Courts.
A three-member collegium, headed by the CJI and comprising the two senior-most judges of that court, makes recommendations for the appointment of judges to the High Courts.
Law to create the NJAC
Over the years, the collegium system has come under criticism for being opaque and unaccountable. When the Modi government came to power in 2014, its first major reform plank was to overhaul the process of judicial appointments.
In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. These two laws provided for an independent commission to appoint judges to the SC and High Courts, replacing the collegium system.
The laws enjoyed near-complete consensus across the political spectrum.
In Lok Sabha, 367 MPs voted in favour of the laws. None opposed. In the Rajya Sabha, 179 members voted in favour, while AIADMK’s 37 MPs abstained from voting. Veteran lawyer Ram Jethmalani was the only MP in Rajya Sabha who voted against the Bill.
The Bill was then ratified by 16 state legislatures, including those led by the Congress and the Left, before receiving the President’s assent.
The 99th Amendment expanded Article 124 to create the NJAC as a constitutional body to replace the collegium system. Its composition would be:
- The CJI as ex officio chairperson;
- Two senior-most Supreme Court judges as ex officio members;
- The Union Minister of Law and Justice as an ex officio member; and
- Two eminent persons from civil society to be nominated by a committee comprising the CJI, the Prime Minister, and the Leader of Opposition in Lok Sabha. (One of the eminent persons was to be nominated from SC/ ST/ OBC/ minorities or women).
The NJAC Act, the supporting legislation, empowered any two members of the NJAC to veto a recommendation if they did not agree with it. The law also said that the criteria for appointment would include seniority, regional representation, etc.
Challenge to the Act
At the heart of the Supreme Court challenge to the law was the veto power that the NJAC gave to two dissenting members.
“In the context of working of the Indian Constitution, the dominant role of the Executive in appointment of judges adversely affected the independence of judiciary. The judiciary is assigned important role for upholding the rule of law and democracy. Its independence and its power of judicial review are part of basic structure. Primacy of judiciary in appointment of judges is part of basic structure. In this background question is whether the new scheme retains the said primacy of judiciary in appointment of judges,” the court had said.
The veto power would essentially mean there could be a scenario where three members of the judiciary, the CJI and the two senior-most judges, were outnumbered by the Law Minister and the two eminent members.
“The veto power with the Law Minister or with non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary,” the court said while striking down the amendment, and consequently, the NJAC Act, as unconstitutional.
On October 16, 2015, the five-judge Bench ruled with a 4:1 majority that the NJAC was unconstitutional and violated the “basic structure of the Constitution”. Justice J S Khehar wrote the majority opinion, along with separate concurring opinions by Justices Madan Lokur, Kurian Joseph, and A K Goel. Justice J Chelameswar dissented.
Negotiating the veto
Even during the two-month-long SC hearing in 2015, some voices called for negotiating the veto power. The view was that, had the government not been insistent on having a veto against the judges, the amendment might have passed muster with the apex court.
Another issue, apart from the veto, was the apprehension of a 3-3 deadlock within the NJAC. Former SC judge Sanjay Kishan Kaul in an interview to The Indian Express in December 2023 had said that the “Chief Justice of India should have had a casting vote.”
“It would have given a predominance to the judiciary. Once that is done, then the appointment must go through, and there should not be a second look at it by the government. The NJAC could have been balanced if the judiciary predominance was protected. I think politically also… it could have possibly been accepted if it had been tweaked rather than set aside,” he had said.
The NJAC Act was challenged and struck down before it was actually tested in practice. The ruling said that for the judiciary to be independent, it was necessary that it had the primary say in appointing judges. Without that, any law would violate the basic structure of the Constitution.
Vice President Jagdeep Dhankhar met with floor leaders of various political parties in Rajya Sabha on Tuesday. Dhankhar has said that “things would have been different” if the Supreme Court had not struck down the National Judicial Appointments Commission Act passed by Parliament in 2014. (X/ @VPIndia via PTI) 
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