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Judicial appointments: when the government and judiciary faced off over NJAC

The NJAC would have been responsible for the appointment and transfer of judges to the higher judiciary in India. However, SC quashed it.


The government’s rejection of Supreme Court recommendation for the elevation of Justice KM Joseph has once again brought the Judiciary and Executive in a stand-off. The move condemned by the majority of the judicial fraternity including Ex-Chief Justice of India RM Lodha, noted jurist Fali Nariman and the Chief Justice of Delhi High Court, has invoked the debate around Government’s interference in the judicial appointment. Earlier, back in 2014, the government had brought National Judicial Appointment Commission (popularly known as NJAC) by amending the constitution through parliament. However, it was struck down by the Supreme Court in the following year before it was even implemented.

As mentioned in our report, Fali Nariman is suspecting that quashing NJAC can allegedly be the reason why Centre is interfering with the judicial appointment. Here’s what the controversial NJAC bill is, on which the judiciary and executive had locked horns.

What is NJAC and why it was constituted?

National Judicial Appointment Commission was a constitutional body proposed in the parliament by the ruling government with the aim of achieving transparency in the judicial appointment. The NJAC would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The bill presented in the parliament also sought to replace the collegium system in the SC which currently overlooks the matters of judicial appointments.

How does collegium system work?

Currently, the Supreme Court of India has a collegium system which sends a recommendation to the government over the judicial appointments and transfers. The collegium includes the CJI and forum of four senior-most judges of the Supreme Court. The collegium system was born out of landmark judgement of Supreme Court known as Three judge cases. In three landmark judgements, the Supreme Court of India conceptualized, debated and shaped the collegium. In the last judgement October 28, 1998, Supreme Court came up with nine guidelines on how the collegium system should function.

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How was the NJAC created and established?

Articles 124 and 217 of the Constitution dealt with the appointment of judges of the higher judiciary. These articles specifically said that judges would be appointed by the President of India after “consultation” with the Chief Justice of India (CJI) and other judges.

The NJAC was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha the very next day. This bill was later ratified by 16 of the state legislatures in India, and even received the nod of the then President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.

What was the composition of NJAC?

As per the amended provisions of the constitution, the Commission would have consisted of the following persons:

  • The Chief Justice of India as ex-officio chairperson and two other immediate senior SC judges after the CJI.
  • The Union Minister of Law and Justice as ex-officio members
  • Two eminent personalities nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha. Out of the two eminent persons, one person would be from the SC/ST or OBC or minority communities or a woman. They shall be nominated for a period of three years and shall not be eligible for re-nomination.

While the government said that the NJAC will curb the Supreme Court practice that has created an imperium in imperio (empire within an empire) within the Supreme Court; the Supreme Court declared it unconstitutional. The Supreme Court bench comprising the then CJI J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.



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