About the Author
Asif Zakir is a fourth-year student at Government Law College, Thiruvananthapuram. His areas of interest include law, history, politics, and the Indian economy. He is also the author of the book “Faltering Indian Republic: Writings On A Nation in Turmoil”.
Introduction
The National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitutional Amendment Act were a major legislative effort to substitute the current collegium system with a new institutional device for appointment of judges to the higher judiciary. It aimed to codify a more transparent, accountable, and participative approach to appointments and transfers of judges to the Supreme Court and High Courts. Even though the collegium system was lauded for insulating judiciary from political pressure, it gradually began to attract substantial criticisms for its opacity and lack of accountability, prompting calls for a more transparent, and participatory mechanism. It was against this backdrop the Parliament enacted the NJAC Act and the Constitutional Amendment in 2014, seeking to create an equilibrium between judicial independence and accountability.
Purpose of the Act
The prime aim of the NJAC Act was to revamp the non-transparent and secretive collegium system, which had developed through a line of judgments famously referred to as the Three Judges Cases – S.P. Gupta v. Union of India (1981), Supreme Court Advocates-on-Record Association v. Union of India (1993), and In re: Presidential Reference (1998). The collegium, which consisted of the Chief Justice of India (CJI), and a group of senior judges, was criticised for its lack of transparency, accountability, and institutional checks and balances. The Act sought to bring about a more democratic and consultative mechanism by having members of both the executive and civil society as part of it, thus aiming to maintain the ideals of checks and balances and separation of powers.
The 99th Constitutional Amendment Act brought the following changes:-
- Article 124A: It laid down the structure of the NJAC, comprising:
* The Chief Justice of India (Chairperson),
* Two most senior judges of the Supreme Court
* The Union Minister of Law and Justice,
* Two eminent persons (to be proposed by a committee formed by the Prime Minister, the CJI, and the Leader of Opposition in Lok Sabha or leader of the largest opposition party)
- Article 124B: Authorised the NJAC to recommend persons for appointment as Chief Justice of India, Supreme Court and High Court judges, and also to recommend transfer of Chief Justices and High Court judges.
- Article 124C: Allowed Parliament to make law for regulating the procedure of the NJAC.
- Article 124(2):- This was amended to substitute the expression “after consultation with such of the Judges of the Supreme Court” with “on the recommendation of the National Judicial Appointments Commission”.
NJAC & Its Constitutional Validity: A Critical Analysis
NJAC’s constitutionality was challenged in Supreme Court Advocates-on-Record Association v. Union of India. By a 4:1 majority, the Supreme Court struck down the 99th Constitutional Amendment Act and the NJAC Act, and held them to be unconstitutional and void for contravening the basic structure doctrine.
The Court held that judicial independence, a fundamental characteristic of the basic structure of the Constitution, was threatened by the executive and non-judicial members’ presence in the NJAC. The majority judgment emphasised that the Act risked politicising the judiciary and undermining its institutional integrity. Justice J. Chelameswar’s dissent, however, stressed that the collegium system was not transparent, and including executive members wasn’t per se violative of the basic structure, particularly considering growing criticisms of judicial insularity.
The NJAC was a constitutionally novel and democratically relevant effort at judicial appointment reform. It addressed long-standing criticism that the collegium system, which shielded judicial autonomy, had become a closed-door exercise, characterised by nepotism, lack of transparency, and lack of formal criteria. But the judgment invalidating it captures a fundamental conflict between judicial independence and democratic accountability. The ruling also raised a pivotal question regarding the limits of the basic structure doctrine can the process of appointing judges never be altered by Parliament, even by way of constitutional amendment, if it has checks and balances?
Additionally, the lack of guidelines, transparency, and informed decisions in the collegium process continues to undermine public trust, supporting the need for a reworked and accountable system. Therefore, devising a middle-course preserving judicial pre-eminence while incorporating transparency and public accountability may be the best approach.
In conclusion, it can be said that the NJAC Act and 99th Amendment were a great endeavour in democratising the process of judicial appointments. However, their nullification left untouched the questions of accountability and reform.
