Guest Post: Five Years of Striking NJAC: The Conundrum of Independence of Judiciary

“The constitutional theory of checks and balances is a part of the basic structure of the Indian constitution.”

The absolute authority of the Collegium system in matters relating to appointment and transfer of judges of constitutional courts has been debated and questioned for long. The collegium consists of the Chief justice of India (hereinafter CJI) and his four senior-most colleagues, who regulate the matters of judicial appointments to the Supreme Court (or two senior-most colleagues in case of appointment or transfer to High Courts along with the senior-most judge having the concerned High court as his parent court).

The gist of furore that has erupted against the collegium since early ’90s is the opaqueness of the system, which ensures neither accountability nor any scope to check for any arbitrariness involved. In October 2015, the incident that added to the rising criticism was Supreme Court declaring the “National Judicial Appointments Commission” (hereinafter NJAC) unconstitutional. The NJAC case upheld the judicial primacy in the appointment and transfer of judges of Constitutional Courts by stating that the initial suggestions made and the ultimate decision taken in matters of appointments and transfers should solely be in the hands of the collegium.

The Locus of Contention

In 2014, the 99th Constitutional Amendment was brought about to give legitimacy to the newly passed NJAC Act by adding Article 124A  to the constitution, followed by 124B and C. With aim of ensuring greater transparency and accountability in the matter concerned, the amendment extended the ambit to the executive, represented by Law Minister, and two eminent personalities along with the CJI and two senior-most judges of the apex court. The eminent persons for the commission were to be appointed by the panel consisting of the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha. The set-up endorsed by NJAC was soon declared unconstitutional by the Apex Court on the grounds of contravening the basic structure which entails “independence of judiciary”. Placing reliance upon the Advocates-on-Record Association vs UOI, (hereinafter Second Judges Case) the Court opined that judicial primacy in appointment and transfer oriented decisions is mandated by the constitution and is fundamental to the basic structure. In the case concerned, there were no doubts regarding the independence of Judiciary being part of the basic structure, but what was challenged was the proposition of judicial primacy being necessary for independence of Judiciary. Now, two major questions which we will ponder over, during the course of our discussion on the NJAC judgment are

  1. How does the concerned amendment violate the basic structure, if the assertion of judges in NJAC case holds true?
  2. Is giving primacy to Judiciary in matters of appointments even forms a part of the basic structure?

Ascertaining the Legislative Intent

Before delving into the proposed concerns, a quick flashback to the Constituent Assembly Debates so as to understand the response of framers of our constitution in lights of this issue is pertinent. It finds an account of Krishnaswamy Iyer cautioning against bestowing unobstructed authority to Judiciary having potential to fabricate “super legislature.” The Constituent Assembly never viewed judicial primacy as a prerequisite for maintaining independence of the Judiciary. It showed its staunch intent against making the Judiciary an Imperium in Imperio by striking down the proposal before it to make concurrence of CJI mandatory in the concerned matter. It was the executive dominance that the assembly intended to negate and such negation cannot directly hold true the justification for necessitating judicial primacy.  

The majority decision in the NJAC Judgment placed reliance on the Second Judges case and reiterated the rightness of reading the word “consultation” in Article 124(2) as “concurrence”. It is essential to understand here that the judgment, by fancifully correlating the validation of word concurrence with the judicial primacy, evaded the need of explaining and analyzing how the Second Judges Case made judicial primacy intrinsic to judicial independence, therefore also to the basic structure. What the Court was supposed to do is to address this core argument and then proceed with upholding the unconstitutionality of the NJAC, as a logical deduction from the fact that judicial primacy is itself a part of the basic structure. Unfortunately, all that the Court did was to conjoin the latter of the two questions proposed above to the former and made that a premise for drawing a conclusion without explaining how judicial primacy was a part of the basic structure.

Decoding the Fallacy

The fallacy attached with the judgment is, by virtue of collegium system being constitutional, it declared NJAC unconstitutional. The summation that the apex court was required to give was not regarding constitutionality of the collegium but to address how NJAC was unconstitutional. Relying on the Second and the Third Judges Case, the constitutionality of collegium in NJAC case was checked from the text of Article 124, and its emergence was traced from the judicial pronouncement, reading consultation as concurrence. So, why was it even needed to trace the establishment of the collegium and to show that it formed a part of the basic structure?

 The reason is if the collegium system would have emanated only from the text of Article 124, then Parliament could exercise its power to delete or substitute any word to surpass a judicial pronouncement.  The only caveat is that such amendment must not violate the basic structure as all amendments made after Kesavananda Bharti case can be subjected to basic structure scrutiny. Hence, if and only if the collegium formed a part of the basic structure, the unconstitutionality of replacing the word consultation in Article 124 (2) with NJAC under 99th amendment would have been justified. The concerned judgment left it on ambiguous traits to establish judicial primacy as a part of basic structure and only made the assumption of it without backing it with arguments and reasoning.

Editor: No Hard Feelings // Source: Twitter

Another perspective was given to the case in hand by the dissenting opinion of Justice Chelameswar, who analysed the difference between the basic features and the basic structure. He said that the summation of basic features gives the basic structure where “an amendment to one or few elements of basic feature may not necessarily violate the basic structure, it depends upon the nature of the element so amended and the context of abrogation.” The inference drawn from Justice Chelameswar’s view is, even if judicial primacy is considered an element of independence of Judiciary (a basic feature), it cannot be said that the concerned amendment violates the basic structure then and there. The reason for holding so is that judicial primacy is not quintessential to the independence of Judiciary and is not the only means of maintaining such independence. The threat to the independence of Judiciary is from executive dominance, and there can be umpteen plausible ways to inhibit such dominance, the collegium was the one, and so was the NJAC.  Hence, amending the stature of judicial primacy cannot be said to have essentially affected the basic structure.

Now, after discussing the fallacies attached with judgment concerned, can it be said that the fear of executive dominance and undermining the role of Judiciary in the matter of appointment was baseless? No, decisively, had NJAC even been declared constitutional, the corollary could not automatically be deduced that it was free from any scope of arbitrariness. According to Court, one major threat to the independence of Judiciary was NJAC giving power of veto to all the six members, where collective veto of two members could reject any name proposed before for appointment. The concern was upon bestowing such unfettered power to the non-judicial members having potential to overpower the say of judicial members. The presence of two eminent persons, for whose selection no specific criteria were listed, was also an underlying concern having the potential to supplement executive dominance.


The fear was pertinent that executive dominance could influence the process, eventually dilapidating the independence of Judiciary. However, in my view, the NJAC solicited an alternative forum to check the issues of opaqueness and non-accountability. Conforming to the doctrine of severability, if some aspect of the act was problematic, that particular aspect could have been struck down by the apex court and not the whole act. There could have been a chance of modifying NJAC by framing selection criteria where the eminent person to be appointed should possess distinguished experience in judicial functioning or knowledge of law, thus assuring against executive dominance.

Other alternatives could have been taken into account like increasing strength of the commission while maintaining a balance between the judicial and non-judicial members then decisions to be made by two-third majority. This would have been in semblance with the suggestions made by the ad hoc committee on Supreme Court which was constituted by the Constituent Assembly and comprised of eminent jurists like B.N. Rau, K.M. Munsi amongst others. There were many other ways to check the arbitrariness or executive dominance, but the apex court found it better to do away with a proposed solution altogether rather improvise it.

This is a guest-post by Shreya.  She is a student of law at National University of Juridical Sciences (NUJS) Kolkata. She can be reached at [email protected]
%d bloggers like this: