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NJAC vs Collegium

Published on Sat, Aug 23,2014 | 12:52, Updated at Mon, Aug 25 at 17:49Source : CNBC-TV18 |   Watch Video :

Last week, an otherwise nugatory parliament, that rarely gets any work done, showed great speed in passing 2 Bills most crucial to the future of India’s judiciary- Bills that determine the appointment of judges. An independent judiciary is a basic feature of our constitution and an absolutely essential safeguard against political excesses. Does that independence stand threatened now?

Article 124 of the Constitution says ‘every judge of the supreme court shall be appointed by the president… after consultation with such of the judges of the supreme court and of the high courts in the states as the president may deem necessary for the purpose…’

Article 124, Constitution of India

(2) Every Judge of the Supreme Court shall be appointed by the President… after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary….

From the early years of our republic, judicial appointments were done by the executive. In Senior Advocate Iqbal Chagla’s words “The collegium system is a result of the disenchantment with the executive's appointment of judges who were expected in the 70s to subscribe to the philosophy, not of the Constitution, but of the government of the day.”

Chagla was among those who first challenged this appointment process in 1981 but failed. In 1993, in the Second Judges Case, a 9 judge bench of the Supreme Court gave the Chief Justice of India primacy in judicial appointments. The collegium system was borne of that decision and expanded from 3 to 5 members in the subsequent 3 Judges’ Case in 1998.


First Judges’ Case, 1982
             Executive has primacy, Judiciary only to be ‘consulted’

Second Judges’ Case, 1993
    CJI has primacy in judicial appointments
    3 seniormost SC judges to decide on appointments

Third Judges’ Case, 1998

  • Increased the number of members in collegium from 3 to 5

For over 20 years, the appointment of judges to the High Court and Supreme Court has been decided by the collegium. No system is perfect and the collegium is far from it. Opacity, arbitrariness, bias – the collegium has often been accused of side stepping merit for caste and regional representation and has also been accused of sometimes turning a blind eye to judicial corruption.

Senior Advocate Dushyant Dave to The Firm in June 2014 “Unfortunately over the last more than two and a half decades the judges have clearly shown that the entire process that they have themselves adopted is highly secretive and is far from being transparent, open and fair. I personally feel that this process has not brought the best judges to be appointed to the highest judiciary and I would be much more comfortable if the original position of appointment by the Executive in consultation with the judiciary is restored back.”

For SC Judge, AK Ganguly to The Firm in November 2013One thing about collegium system I have a criticism which has completely made the executive subservient to the primacy of the opinion of the judiciary that is not correct, that is not the scheme of the constitution. By a judgment you cannot rewrite the constitution. 

Senior Advocate Harish Salve to The Firm in June 2014 “Today we need a system, A) which is transparent, B) which as far as possible can secure these appointments in a non-controversial way. That should be the goal of setting up when you are designing a new body which will appoint judges. We should try and see that we have a body where by consent you can arrive at sufficient number of names or at least sufficient number of people. So nobody has primacy and yet appointments get made.”

Senior Advocate Raju Ramachandran to The Firm in November 2013 “Judges while appointing judges only look at their technical competence. They are bound by seniority. There are other aspects to appointments to the superior judiciary, for instance a judge's constitutional vision, his social philosophy. What is his attitude to gender justice? What is his attitude to affirmative action? These are all matters which judges do not scrutinise among themselves. There has to be an outsider involved in this process.”

The failures of the collegium system have given an old idea new life. Last year the UPA government introduced a Constitutional Amendment Bill and a Judicial Appointments Commission Bill. The UPA versions were improved on by the NDA and last week, in a rare show of solidarity, parliament passed both the 121st Amendment Bill and the National Judicial Appointments Commission Bill. There was little discussion or debate and the vote was unanimous.

The lack of debate and the breakneck speed at which the Bills were passed has alarmed many. Yes, the Constitutional Amendment Act still needs approval from states and both Acts need presidential assent. But if last week’s parliamentary bonhomie was anything to go by, the JAC could soon be a reality. So this week, The Firm reached out to 8 more senior counsel and judges for their verdict on the NJAC vs Collegium debate! Here are the results of that poll.

The Constitutional Amendment says the National Judicial Appointments Commission will make recommendations to the President on appointment of judges. The NJAC will have 3 members from the judiciary, the law minister and 2 eminent citizens chosen by the prime minister, chief justice and leader of opposition.  Then there’s the NJAC Bill which regulates the procedure to be followed in the selection of judges. Together, both provide for the establishment of a National Judicial Appointments Commission. Is this NJAC an improvement on the collegium system? 


Constitution (121st Amendment) Bill, 2014

NJAC to make recommendations to the President on appointment of judges

NJAC Composition

- CJI + 2 seniormost SC Judges  
- Law Minister
- 2 Eminent citizens

Eminent Citizens chosen by - PM

- Leader of Opposition

 Renowned Tax Counsel Dinesh Vyas says no. He emphasizes that the 3 organs of the state should be absolutely independent of each other. Iqbal Chagla acknowledges the failure of the collegium but says the JAC is clearly intended to make the judiciary subservient to the executive. Porus Kaka points out that the biggest litigant in India is the government and to see them have the power to appoint or transfer judges is extremely unfortunate.  Arvind Datar says the JAC takes us several steps back.

Arvind Datar, Senior Advocate

 “The main objection for the collegium system is that the lack of transparency, the lack of objective criteria and there is nothing in the Constitutional Amendment or in the new Act which ensures either transparency or accountability and in fact far from curing the defects in the collegium system they are going to add to further complications by the way the judicial commission is structured, its compositions, the way the regulation are going to be framed it is going to be far more complicated and I am quite sure that this is not going to be an improvement at all.”

Mohan Parasaran, Former Solicitor General of India
"The biggest criticism of that system is that judges appoint themselves without being accountable to anybody. Therefore now the parliament has actually struck a balance and has sought to restore the original intent of the constitution by actually establishing this national judicial commission in actually having three senior most judges of the Supreme Court and the law minister plus two eminent persons.” But that very composition has many Senior Counsel fearing a loss of judicial independence.

 Arvind Datar, Senior Advocate
“There is no supremacy to the judges in the appointment. Suppose there is a tie, there is no casting vote to the Chief Justice which is a serious infirmity and which may eventually lead to the Bill being struck down. Secondly at the High Court level when you go and mind you, we should pay more attention to the selection of High Court judges because they are the people who are going to be in the Supreme Court ten years from now. So at the High Court level you have, for the first time perhaps, to take the views of the Governor and the Chief Minister in writing. Now, there is a recommendation from the High Court collegium, the High Court and the High Court judges make a recommendation and there are views of the governor and the chief minister. Whose view is going to prevail; there is no answer. Now you have got two eminent persons, who are these eminent persons; nobody knows. In fact the Bill does not even say they should have some relation with law. In many other enactments if you have the requirement of an eminent person, then you say that eminent person in the field of such and such subject is also part of that particular Statute. Here the eminent person has got nothing to do with law. Now with this kind of a composition between the judiciary and the executive with the Governors and Chief Ministers being thrown in, it is definitely a threat to the independence of the judiciary.”

The Commission composition gives the judiciary an equal and not a majority say. But it’s not just the composition most Senior Counsels are irked about. They fear that key elements in the selection process are not embedded in the Constitutional Amendment and are either in the parliamentary Act or in delegated regulations – both of which can be changed easily. For instance the Constitutional Amendment says ‘Parliament may, by law, regulate the procedure for the appointment of chief justice of India and other judges of the supreme court and chief justices and other judges of high courts’. Or consider the NJAC Bill which says the seniormost judge in the Supreme Court should be appointed as chief justice but only if he is ‘fit’. With the incumbent CJI sitting out that vote, the judiciary will be in a minority when determining the next CJI and the determination of fit will be left to non-judicial members. For the appointment of high court chief justices, the NJAC Act refers to suitability criteria as specified by regulations.


Constitution (121st Amendment) Bill, 2014


Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. NJAC vs COLLEGIUM  

NJAC Bill, 2014

  1.  fit to hold the office

 Provided that a member of the Commission whose name is being considered for recommendation shall not participate in the meeting.


NJAC Bill, 2014

  1.  any other criteria of suitability as may be specified by regulations

Anil Divan, Senior Advocate
“The manner in which the Bill is structured gives complete dominance to the executive and the legislature and I will tell you why. Section 5 and 6 deal with recommendations for the Chief Justice of India as well as Chief Justice of the High Courts. Now this provision can be changed by parliament by ordinary law. At the moment it says that normally the senior judge should become Chief Justice of India. That can be altered by parliament by an ordinary law. Similarly as far as chief justices of the High Court are concerned, today the provision is that inter-seniority amongst High Court judges would be a considered- that can also be altered. So, this can be altered by ordinary law - 5 and 6. Further central government is going to appoint all the officers and treat the judicial appointments commission as the government department. Now if it is a government department there is no independence left at all.”

The NJAC Bill also includes a veto clause – if any 2 members do not approve of any appointment, it cannot be made. 


NJAC Bill, 2014

Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. Porus Kaka describes the veto as dangerous. He says “if at all a veto had to be given, it should have been given to the judiciary and nobody else. To allow to override the 3 judges is something which is wholly unconstitutional and really affects the independence of the judiciary”

But Mohan Prasaran disagrees!

Mohan Parasaran, Former Solicitor General of India

“I have been repeatedly saying that this power of veto should be seen from a positive angle and if any actually bad elements are suggested by the executive in collusion with the so called eminent members, the judges can turn it down and in a given case where actually good members suggested by judges are arbitrarily turned down by the executive, there is always a power of judicial review and they can always strike down that decision. Therefore ultimately still the judiciary is holding an upper hand and I don’t think it is going to affect the independence of the judiciary.”

Among the 6 Senior Counsels we spoke to, Mohan Parasaran was in a minority of one. All others are opposed to the JAC in this current format. Porus kaka refererred to a recent incident in which retired Justice Katju alleged that collegium allowed a corrupt judge to advance due to political pressure. Kaka says “ In the current judicial collegium system, where there are very little powers that the government has, if they could exercise such powers and install an allegedly corrupt judge, then can you imagine what is going to happen when the government is sitting on the panel. So the Justice Katju incident is a red flag for not allowing the executive to having greater powers in the judiciary and not the other way round.”

Dinesh Vyas fears the creation of such an NJAC will “take the country back to the period when a “committed judiciary” was regarded as a part of the Indian democracy”.

An independent judiciary is part of the basic structure of India’s constitution. And any law that violates that is unconstitutional. The JAC composition, the parliamentary discretion, the delegated regulation- it is for these reasons that 5 of the 6 Senior Counsels we spoke to believe that the Constitutional Amendment Act and the NJAC Act can be successfully challenged in court! Already 4 public interest litigations have been filed against it.

Arvind Datar, Senior Advocate
“It is a strong possibility of the law being struck down and the first reason is that in the Madras Bar Association case, they said that when you select tribunal members the selection committee must consist of judges and civil servants and in the event of a tie, the view of the judiciary must prevail. If the view of the judiciary must prevail for a tribunal member, then I can’t fathom how it cannot prevail when you are selecting High Court judges and Supreme Court judges; that is point number one. Secondly the entire composition is highly arbitrary. As I said, you have six members, what happens if there is a tie, what happens if there is no quorum, how do you select eminent members - that is another major challenge. And the third and the most dangerous part of the new Act is that a lot of important things have been left to the regulations. Under the Constitution the eligibility criteria must be prescribed in the Constitution itself. You can’t have eligibility criteria being framed by regulations from time to time.”

Anil Divan, Senior Advocate
“According to me, it has to be challenged because both are part of a scheme and certainly the provisions of the Bill not having been introduced in the Constitutional Amendment ensuring independence of the National Judicial Commission makes it highly vulnerable. In fact one of the things which was debated was why not have only a Constitutional Amendment Bill? Why have a separate bill altogether, because then whatever the criteria are gets embedded in the Constitution itself and cannot be changed by parliamentary majority.”

Mohan Parasaran, Former Solicitor General of India
“Actually the legislation is stillborn. Now it has to be discussed on the floor of the various legislative assemblies and there could still be some amendments brought about pursuant to the discussions on the floor of various legislative assemblies. Then again it has to come back to the parliament, then it has to go to the President. We will have to wait and see in what shape it comes and then once the President gives an assent, it actually gets life as a valid piece of legislation. As of now it is stillborn, it has not yet become a law.”

Chronic pendancy, bench vacancy, endless delays – the state of the Indian judiciary is nothing short of pathetic. If the collegium is flawed and the NJAC unacceptable – then what will serve as the best method for selection and appointment of judges?

Iqbal Chagla says “yes to a judicial commission but not in the form proposed.  The composition must be such as not to take away the primacy of the judiciary but at the same time to make it inclusive.  The method must be transparent and open.”

Anil Divan, Senior Advocate
The collegium system needs reform. I have written repeatedly that it should be transparent. Everybody should have an equal chance. They should widely advertise, invite applications from potential candidates etc, now that could be done, number one. Secondly you could have in the collegium a non executive and non political individual, say representing civil society if you want, but finally the majority should be with the judicial element.”

Arvind Datar, Senior Advocate
“For the selection process of the High Court if you have objective criteria which can be laid down which can be accessed on a website, which can be known to everybody on what basis you are going to select candidates then that is easily known. As far as participation of the executive is concerned it is an absolute myth that the executive has no say. Even today after the collegium makes its recommendations, they are sent to the executive, to the law minister, to the ministries for their comments. So, it is not that they are not consulted at all. May be that can be put into a standard operating procedure that first you see the possible candidates, you choose them on the basis of selection criteria. After you have shortlisted the candidates, you send them to the executive, the comments are known and if all this can be recorded in writing, then there is no cause of complain that there is some kind of secrecy or some kind of undisclosed parameters have been taken into account to appoint judges. So you can perhaps remedy the defects of the collegium system and it will be workable rather than having this Judicial Appointments Commission and one final thought - in case ultimately the parliament feels that no, we have to go for a Judicial Appointments Commission in a constitutional manner, before we ultimately implement the Commission, it may be better to have it tested in a couple of States- like three-four High Courts try the Appointments Commission method, see if it is working and then replace the collegium system wholesale because we are now talking of more than 20 High Courts, 700-800 judges and about 30 Supreme Court judges. So it is very important step, it should not be done hastily.”

That sums up how most Senior Counsels we spoke to felt about the National Judicial Appointments Commission. We also reached out to retired judges. Few were willing to talk. Two did and interestingly both judges are in favor of the JAC!

Retired Supreme Court Justice NK Sodhi says “In my opinion JAC is an improvement on the present collegium system. I say so because there is no transparency in the collegium in the selection of Supreme Court and High Court judges. No one knows what procedure the collegium follows for selection and what considerations weigh with the members in selecting judges. How they judge that one is better than the other is not known. Quite often the names recommended by the Chief Justice of a High Court are turned down and no one knows why. Hopefully the JAC should work more transparently and the law minister is on record saying that detailed regulations would be framed regarding the manner in which the JAC would work and the matters it would consider in appointing and transferring judges. The author of the judgment which introduced the collegium system had said that the system has failed. That being so, it must go and we must give JAC a fair try any system which is opaque cannot succeed because sunlight is the best detergent”.

Justice Mudgal supports the move to a JAC but with an additional member.

Justice Mukul Mudgal, Former Chief Justice, Punjab & Haryana High Court
“If we had one more judge instead of three, by having a majority with an outside input which is proposed, then JAC Bill would be quite alright.”

We’re going to give the last word in this debate to Soli Sorabjee. Here’s his comment from our debate last year

Senior Advocate Soli Sorabjee to The Firm In November 2013
“Please remember no system can be perfect. You cannot ensure independence, you cannot legislate independence. A judge must be independent even of himself, of his biases, prejudices, predilections, preconceptions but the thing is on the whole it is a human system, it is not a perfect system. I think I would rather go with the collegium system, make it broad based, it to be taken into consideration in appointment of judges rather than scrap it altogether. I would rather trust the judges than the executive.”


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