The NJAC Act-Is It the Perfect Remedy?

Ameya Vikram Mishra and S. Ananth Balaji1

The process of appointment of judges to the superior courts is possibly the best kept secret of the
country -Justice Ruma Pal

Introduction

The system of appointment of judges has always been an area of confusion and controversy. Several
unsuccessful attempts have been made to arrive at a single effective position of law since independence.
The present government, in order to rectify this situation, has come up with the National Judicial
Appointments Commission Act, 2014 (Hereinafter referred to as the NJAC Act) to replace the existing
collegium system of judicial appointments.

The Act has been hailed by sections of the legal fraternity to be the perfect solution to the issue of judicial
appointments in India. It has been asserted that the Act strikes the perfect balance between the doctrine
of separation of powers and judicial accountability.2 Nevertheless, there are legal luminaries like Mr. Anil
Diwan and Mr. Ram Jethmalani who have expressed concerns regarding this system of appointments.3
Petitions challenging the constitutionality of the NJAC is presently being heard by a 5-judge bench of the
Supreme Court headed by Justice JS Khehar.

The authors in the present article will delve in to the question of whether the NJAC Act is actually the
harbinger of hope in reforming the judicial appointment system. This will be done by investigating and
analyzing the Act in the present form and also comparing it to the existing collegium system. The authors
will also attempt to provide suggestions in order to make the NJAC a better mechanism than the
collegium; if not the perfect one.

JURIDICAL HISTORY OF APPOINTMENT OF JUDGES IN INDIA

Keeping in mind the separation of powers between the judiciary and the executive, the framers of the
Constitution came up with three important provisions to deal with appointments and transfer of judges of
the High Courts (HC) and the Supreme Court (SC). Articles 124, 217 and 222 of the Constitution deal
with the above mentioned subject. However, the appointments to the HCs and the SC were not being
made with respect to these provisions of the Constitution. These appointments were being made by a
collegium, a non-constitutional forum, which consists of the Chief Justice of India (CJI) and the four most
senior judges of the SC.

Until 1981, the abovementioned provisions of the Constitution were the guiding principles for appointment
of judges, and the final decision making power rested with the President. However, a set of cases in the
next two decades, popularly referred to as the Three Judges Cases, altered this position of law. In
4
1981, the SC in the First Judges case held that the word consultation mentioned under Article 124 did
not mean concurrence and the Government was not bound by the opinion of the CJI and could reject it
for cogent reasons. This judgment resulted in the power solely resting in the hands of the executive with
respect to appointments of judges to the higher judiciary. However, this position changed after the
landmark decision given in the Second Judges case.5 The majority judgment in that case overturned the

1 th
4 Year B.A. LL.B (Hons.) students of the West Bengal National University of Juridical Sciences, Kolkata.
2
http://www.business-standard.com/article/pti-stories/scba-terms-unfortunate-stand-of-scaora-on-njac-115031101009_1.html (
Supreme Court Bar Association supports the NJAC Act)
3
http://www.business-standard.com/article/news-ians/top-lawyers-divided-on-new-system-of-judicial-appointments-
115041100855_1.html
4
S.P.Gupta v. Union of India, AIR 1982 SC 149
5
Supreme Court Advocates-on Record Association v. Union of India,(1993) 4 SCC 441

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First Judges case ruling and held that the role of the CJI is primal in nature.6 The majority (7:2) of the
bench held that the appointments had to be made so as to be in conformity with the opinion of the CJI.
Thus, the collegium system was introduced, where the power to appoint the judges to the higher judiciary
rested with the CJI and the two senior most judges of the SC. This was followed by the Third Judgess
case7 in 1998 when President K.R.Narayanan made a presidential reference to the Supreme Court
relating to the above issue. The Courts opinion in the present reference was in consonance with the
decision of the Second Judges case. The Court reiterated the fact that CJI had the primacy in the
decision making process and held that any appointments made without his consultation would not be
valid.

It is important to keep in mind that there was widespread criticism of the decision of the first judges case
and many believed that the SC did a reasonable job by changing the system of appointments.8 One of the
most pertinent aspects of the collegium system was that it does not provide for any scope for disregarding
the CJIs opinions. However, the collegium system was not flawless. Lately, it had come to face enormous
criticisms with respect to its functioning.

MAJOR DRAWBACKS OF THE COLLEGIUM SYSTEM

Lack of proper mechanism to check professional background of the Judges

The collegium system lacked a proper mechanism to collect details of the judges-to-be. It is impossible for
the CJI and the 4 senior Judges of the SC to trace out each and every detail of the candidates personal
and legal background. There exists no appropriate body to do a background search on the candidates.
The infamous cases of P.D.Dinakaran J., Soumitra Sen J. and Nirmal Yadav J. clearly highlight the failure
of the collegiums system with respect to background checks.

Absence of a transparent process for appointments

The collegium system, which was a forum of the CJI and the four senior-most judges, appointed the
judges through a process which was unknown to the world at large. There was no transparency with
respect to selection and rejection of the candidates, and all that was known was that the opinion of the
CJI was final. No reasons were required to be given by them publicly and hence the collegium was given
the opportunity to misuse their power. The lack of transparency of the collegium system led to nepotism in
the judiciary, which eventually resulted in the rejection of many meritorious candidates. It also led to
favoritism and corruption, which deny the common man justice.

The confusion relating to Meritorious selections

It is important to note that merit is the most important criterion for selection to the bench. However, the
word merit is not defined anywhere in any statute, and there exists a subjective interpretation to it.
Different judges have stated the qualities that a judge must possess, but have never explained the basis
of the term merit with respect to selections. Thus, leaving the appointments of judges on the basis on
the tricky concept of merit to a secret forum of five Judges resulted in negative consequences.9 The
narrow minded perception of the concept of seniority had also jeopardized the system of appointment.
The approach of the collegium to appoint senior most Judges of the HC to the SC seems to go against
the concept of merit.

6
Ibid
7
Special Reference No.1 of 1998, Re:,(1998) 7 SCC 739
8
M.P.Singh, Merit in the Appointment of Judges (1999) 8 SCC (J)7
9
Ibid.

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Packing of courts with judges of similar schools of thought

It is the natural tendency of people to favor like-minded people and thus, leaving the entire selection
process to five judges resulted in packing of the courts with judges of similar ideologies. If a court is filled
with judges having a similar thinking process, it may find it difficult to decide matters relating to diverse
issues. Also, the number and the quality of dissenting opinions, which are essential for analyzing the pros
and cons of the decision, decrease.

THE TRANSITION FROM THE COLLEGIUM SYSTEM TO THE NJAC

The NJAC Act, 2014 has been drafted in order to establish the National Judicial Appointments
Commission and also to lay down the procedure which it has to follow. Further, Articles 124(2) and Article
217 are proposed to be amended and new articles- Articles 124A, 124B and 124C will be added so as to
recognize this new system of judicial appointments. Article 124A gives constitutional status to the NJAC
and lists out the composition of the Commission. The Commission shall consist of six member viz. the
Chief Justice of India, two senior-most judges of the SC, the Union Law Minister and two eminent
persons. The two eminent persons shall be selected by the Chief Justice of India, the Leader of
Opposition and the Prime Minister of India. Furthermore, Article 124B lays down the functions of the
commission and clause (c) of the Article provides that it is the duty of the NJAC to ensure that the
recommended candidates are of the requisite ability and integrity. Article 124C gives the Parliament the
power to make laws with respect to the procedure to be followed by the NJAC for appointing judges of the
High Courts as well as the Supreme Court. In lieu of this Article, the NJAC Act was drafted in order to lay
down the procedure which the commission has to follow while making the appointments. Furthermore, the
NJAC Act, by virtue of the various provisions therein, lays down the procedure to be followed while
making the appointments which involves the process of consultation amongst the various governmental
bodies involved in the process, along with the veto powers which ensures some amount of accountability
and transparency.

However, minor cracks in an otherwise firm structure, can sometimes lead to a total failure of the structure
itself. The NJAC Act and the Constitutional amendments, in the opinion of the authors, have left out
crucial elements involved in the appointment procedure while seeking to create a body to ensure
complete transparency in the judicial appointments process and this omission can lead to detrimental
results.

THE DRAWBACKS OF THE NJAC ACT

Likelihood of Conflict

Article 124C (inserted by the 99th Constitutional Amendment Act) empowers both the Commission and the
Central Government to lay down rules and guidelines in relation to the way in which the appointment
procedure has to be carried out. This emanates from Section 11 and Section 12 of the Act. The Central
Government has been granted residuary powers under Section 11(2) (c) which permits it to make rules
for any other matter which is to be or may be prescribed, in respect of which provision is to be made by
the rules.10 Section 12, on the other hand, empowers the Commission to enact rules regarding procedure
for appointment of a High Court judge, procedure for selecting candidates for consideration for the post of
a High Court judge and even a Supreme Court judge.11 Moreover, according to Section 12(2) (e), the
Commission has also been granted residuary powers. As a consequence of the enactment of the above
mentioned provisions, the authors feel that there a likelihood of a conflict between the set of rules laid
down by the Central Government and the Commission. The absence of a provision specifying which set
of rules will supersede in case of a conflict makes it even worse. Furthermore, this is in light of the fact
that the Union Law Minister is a member of the Commission and plays an active role in keeping a check
on the prospective vacancies and ensuring prompt appointments. Thus, this further enhances the
chances of a conflict between the Commission and the Central Government.

10
Section 11 (2) (c), NJAC Act.
11
Section 12, NJAC Act.

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The Legislative Evasion

It is pertinent to point out that Article 124C of the Constitution gives the Commission the power to make
regulations to discharge its functions. As mentioned above, Sections 10 and 12 of the NJAC Act empower
the commission to make regulations with respect to its functioning. It is true that the regulations to be
made by the commission must be in accordance with the NJAC Act as well as the rules to be made by the
central government under section 11 of the Act. However, these provisions are not stringent enough and
lead to more questions than answers. The preamble of the Act clearly suggests that it is for regulating the
procedure to be followed by the Commission while making recommendations for the appointments to the
judiciary12. While the Act provides for the steps to be followed by the commission while making the
recommendations and appointments, it has not included a key procedural element i.e. the criteria for
selection.

Thus, the Act has not provided a remedy to the problems existing in the collegium system. Instead of the
legislature taking it upon itself to provide the criteria, the power has been delegated to the Commission
gaining support from Article 124C. However, the Supreme Court has restricted the power of delegation by
the legislature to only those powers which are not the inherent legislative functions.13 This inherent
legislative function of laying down the criteria has been delegated to the Commission instead of specifying
it in the Act itself which, in our view, reflects the evasion on the part of the legislature to carry out its
inherent functions.

Furthermore, considering the fact that the Law Minister is a part of the NJAC and the executive has an
important role to play in appointing the eminent persons to the NJAC, making regulations in compliance
with the rules made by the Central Government under Section 10 would not be a difficult task at all.
Rather, there is a possibility that rules enacted by the Central Government may be framed in a way to
justify the NJACs regulations. Thus, the only difference between the way the collegium functions and the
way NJAC will function is that earlier collegium exercised unchecked powers and now the NJAC will
exercise unrestricted powers.

Therefore, the authors are of the opinion that the legislature should have laid down the criteria for
selection instead of leaving it to the NJAC.

The Missing Element of Merit

In the opinion of the authors, one of the important elements required to remove the existing opaqueness
is to introduce the concept of merit. Merit, which can be regarded as probably the most important
criterion for making judicial appointments, has not been elaborated upon by the drafters of the Act. What
constitutes merit is thus, largely unknown.

The Act, as mentioned above, fails to lay down proper criteria on the basis of which judges will be
selected and thus this leaves room for arbitrariness. The Act does not mention any kind of objective
criteria on which the Commission must rely while making the appointments. Thus, it is imperative to
include specific merit based criteria which are to be followed by the members of the NJAC before making
any recommendation.

However, it is important to keep in mind that merit can never be a completely objective component of
selection. Thus, the remedy for this is to make the merit component a less subjective criterion so that the
most meritorious candidates are appointed to the higher judiciary.

Excessive Legislative Interference

12
The preamble of the NJAC Act can be found here-
http://www.prsindia.org/uploads/media/national%20judicial/National%20Judicial%20Appointment%20comm%20Act,%202014.pdf.
13
See Raj Narain Singh v Chairman, Patna Administration Committee, Patna, AIR 1954 SC 569; Lachmi Narain v Union of India,
AIR 1976 SC 714.

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Another problem with this Act is with respect to Section 13 which makes all rules and regulations made
under Section 11 and Section 12 amenable to the Parliament of India.14 The consequence of this kind of
a mechanism will result in the system of checks and balances, which forms the cornerstone of the
working of our democratic system, being distorted. The constant interference of the legislature at every
stage in this procedure will adversely affect the working of the Commission, which needs to be
guaranteed a basic level of autonomy in its functioning. Section 13 can thus jeopardize the entire
procedure of appointments contemplated while passing this Act.

However, it is important to note here that the authors are not suggesting that the Commission should be
beyond the confines of the system of checks and balances. In our view, the regulations made by the
Commission should be subject to judicial review. It should be kept in mind that the purpose of passing this
Act was not only to limit the role of the judiciary in judicial appointments but also to ensure that the
appointment procedure is segregated from unnecessary government intervention. The process of judicial
appointment can be fair and impartial only when it is shielded from constant government pressure.

THE WAY FORWARD- MOVING FROM SUBJECTIVITY TO OBJECTIVITY

It is in this regard that the authors suggest the constitution of a sub-committee under the Commission by
virtue of its powers under Section 12 of the NJAC Act. This sub-committee shall be a specialized expert
body appointed by the members of the Commission. It shall comprise of jurists as well as the presidents
of the respective bar associations, depending upon appointment to a particular court15.

The Commission shall first render names of the candidates who they consider fit to hold a particular post
to the sub-committee. The sub-committee shall conduct a performance evaluation in order to shortlist
these candidates. The evaluation shall be on the basis of two objective criteria. First, the sub-committee
shall examine the participation of these judges in the posts they had been holding hitherto. With respect
to this, the sub-committee will delve into issues such as the number of times the said candidate has
delivered a judgment himself/herself, the number of times the candidate has delivered a separate
concurring opinion and also the number of times the candidate has dissented from the majority opinion on
sound and logical grounds.16The sub-committee shall also scrutinize the separate concurring opinions
and dissenting opinions. This will assess how active these judges have been in the past while holding
their previous posts. Since the inception of the collegium system in the Second Judges Case, there have
been very few dissenting opinions delivered. The primary reason for this, in the opinion of the authors, is
the presence of like-minded people getting appointed to the judiciary which was also one of the
fundamental criticisms of the collegium system. This basis of performance evaluation seeks to correct the
same. Second, the sub-committee shall also look into the judgments in which these candidates were
involved and review whether any grave and blatant miscarriage of justice had taken place or whether a
judgment was delivered per incuriam. The shortlisted candidates shall then be sent back to the
Commission.

Subsequently, the Commission shall conduct an interview akin to the one followed in the UK of these
shortlisted candidates as well as the advocates and renowned academicians nominated by the
Commission. The said interview shall be conducted by all the six members of Commission in order to
determine whether a particular candidate possesses the required qualities and skills. The interview shall
comprise of two stages viz. role play and situational questioning.17 In the role playing exercise, the
candidates will be asked to play the role of a judge and prepare a cogent judgment on the given
situation.18Further, during the situational questioning session, the candidate would be asked how he

14
Section 13, NJAC Act.
15
For example, while considering the appointment of a candidate from Delhi High Court, the President of the Delhi High Court Bar
Association should be involved.
16
The authors suggest a mechanism similar to this- http://barandbench.com/content/212/verdictum-justice-k-patnaik.
17
The appointment procedure followed in the UK can be found here- http://jac.judiciary.gov.uk/selection-process/selection-
process.htm.
18
Ibid.

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would react to a hypothetical challenge regarding a real life problem.19 We recommend these twin
selection methods be conducted in order to ensure that the candidates are not malleable under pressure
and are fit to handle the ground realities of the post. On the basis of the grades obtained in these
exercises, the candidates shall be selected.

The authors are not oblivious to the arduous nature of the selection procedure and are mindful of the
possible difficulties which may arise in the proper implementation of the same. However, it is important to
keep in mind that this is certainly a more objective system to evaluate candidates and appoint judges.
The authors are of the strong view that this in turn will protect the legitimacy and the transparency of the
system. Moreover, given the kind of role the judiciary plays in the Indian democracy and the flagrant
failure of the previous appointment system which requires no reiteration, an appointment procedure of
such a nature seems to be inevitable.

CONCLUSION

Though the collegium system was successful in creating an independent judiciary, it failed miserably in
establishing an accountable one. Lack of meritorious appointments, corruption, nepotism, favoritism and
court packing are only few of negative aspects of the collegium system.

Those in favor of the establishment of the NJAC have suggested that the system is foolproof and ensures
accountability and transparency in the judicial appointments process. However, we need to understand
that the NJAC in its current form still suffers from defects, as discussed in the preceding sections, some of
which also accompanied the collegium system. Thus, in order to ensure that this new mechanism of
appointments provides the remedy to this existing problem, it is inevitable to cure these defects. The
authors believe that the Act does have the potential to remarkably reform the present system if these
drawbacks are duly rectified.

________________________

19
Ibid.

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