Opinion NJAC debate needs to be reframed through civilisational approach to ‘dharma’, power and accountability

It is a fair and important question. However, the answer does not lie in simply replacing one model with another. It lies in asking what kind of system can preserve what matters most: The independence, integrity, and moral authority of the judiciary.

That answer, as it turns out, is already embedded in India’s own legal and philosophical heritage. What was India’s original design for justice, and what does it teach us about how institutions should be built, and rebuilt?

A justice system rooted in Dharma

India’s legal memory is older than its republic. Long before modern courts, justice in India was not a compartment of the state. It was the state’s moral spine. The king, according to the Manusmriti, Yajnavalkya Smriti, Narad Smriti, and Arthashastra, was not merely the executive. He was the dispenser of justice, bound by sacred duty to hear disputes daily, flanked by learned counsellors. Failure to punish the guilty or protect the innocent was not a matter of administrative concern. It was a sin, one that carried spiritual consequences.

When a king could not preside over matters himself, he was instructed to appoint a judge, a pradvivaka, of unimpeachable character, self-restraint, and learning. That judge was expected to work alongside a council of three, five, or seven assessors. Ancient Indian jurisprudence insisted on odd-numbered benches. This was not only to avoid deadlock, but to institutionalise reasoned consensus. The same wisdom appears today in Article 145 clause 5 of our Constitution, which requires decisions of the Supreme Court to be by majority, while allowing dissenting opinions to be expressed.

Some may point out that High Courts often function through Division Benches consisting of two judges. But even here, the structural wisdom of odd-numbered resolution is preserved. When there is a difference of opinion between the two judges, the matter is referred to a third judge. The final decision, therefore, always rests on a majority. The process may begin in parity, but it does not end in deadlock. This procedural mechanism, though administratively efficient, is never allowed to override the principle that justice must be resolved by reasoned consensus.

These were not merely spiritual ideals. They were structural safeguards, devised by jurists who saw the courtroom as a dharmasthan, a sanctified site of truth.

The fault in the NJAC

The NJAC, created through the Ninety-Ninth Constitutional Amendment, aimed to address the perceived opacity of the collegium system. But it collapsed under the weight of its own internal contradictions. The Commission was to consist of six members: the Chief Justice of India, two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons. In theory, this promised diversity. In practice, it created an imbalance.

The NJAC gave no casting vote to the Chief Justice. More critically, it gave a veto to the two non-judicial members, enabling them to override four constitutional authorities, including the Chief Justice and the Law Minister. This inversion of the majority principle was precisely what ancient Indian jurisprudence had cautioned against. It was rightly struck down by the Supreme Court in 2015. Justice J S Khehar, writing for the majority, warned that such a mechanism would erode judicial independence and foster a culture of reciprocal favours between the judiciary and the executive.

India’s Constitution does not recognise the idea of a committed judiciary. That doctrine was buried with good reason, and must not be revived in new forms under the pretext of reform.

Executive instability and structural risk

Some have argued that executive involvement would bring order, transparency, and accountability. However, even a brief look at recent precedent suggests otherwise. The office of the Advocate General in Punjab has witnessed multiple resignations and reappointments within just two years. A constitutional office that demands clarity, continuity, and public trust has instead become a revolving door. If the executive cannot retain stability in its own top legal post, it cannot reasonably claim the institutional maturity to shape the future architecture of the judiciary.

Judicial independence must not be used to justify judicial opacity. At the same time, demands for transparency must not become a vehicle for executive capture. These two goals must be pursued in tandem, but never at the cost of one another.

Courts were never meant to be ordinary

In the classical Indian framework, courts were never viewed as departments or administrative units. They were dharmadhikaranas and dharmasans, places where justice was not delivered out of convenience, but performed as a sacred obligation. Contempt of court was not simply a procedural offence. It was an ethical failure and a disruption of the moral order.

The Mahabharata tells us of King Nrig, who was cursed to be reborn as a lizard after failing to resolve a simple property dispute between two Brahmins. The message is enduring. Neglecting justice invites consequences, not only for the litigants, but for the legitimacy of the ruler himself.

Where do we go from here?

The NJAC debate cannot be reduced to a question of institutional primacy. The deeper task before us is to design a structure that protects judicial independence while inspiring public confidence. That structure must not be borrowed or improvised in haste. It must be drawn from India’s own civilisational understanding of how power is best held to account.

Our ancestors understood what we are at risk of forgetting. Institutions endure not only by the strength of their decisions, but by the integrity of their design. They must avoid deadlock, resist capture, and cultivate trust. These principles are not new. They are already present in our constitutional text, in our legal heritage, and in our jurisprudential memory.

We do not need to reinvent them. We simply need to remember.

The writer is a practising advocate at the High Court of Punjab and Haryana