NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC) EXPLAINED

Why In News?

Former judges and senior advocates at a Chennai colloquium strongly criticized the lack of transparency in judicial appointments under the Collegium System.

What Is The Collegium System?

The Collegium System is a judicially evolved mechanism—not explicitly mentioned in the original text of the Constitution—that governs the appointment, elevation, and transfer of judges across the Supreme Court of India and state High Courts.

• Under Article 124(2) of the Constitution, appointments to the Supreme Court are formally made by the President after consultation with judges of the Supreme Court and High Courts.

• Under Article 217(1), appointments to the High Courts are executed by the President after consultation with the Chief Justice of India (CJI), the Governor of the State, and the Chief Justice of the High Court.

• The system evolved through three Supreme Court rulings known as the Three Judges Cases:

• First Judges Case (S.P. Gupta vs Union of India, 1981): A seven-judge bench held that "consultation" under Article 124(2) and Article 217(1) did not mean "concurrence," thereby establishing executive primacy in higher judicial appointments.

• Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India, 1993): A nine-judge bench overruled the First Judges Case, interpreting "consultation" as mandatory "concurrence" and vesting judicial primacy in the CJI acting alongside two senior-most judges, creating the initial Collegium.

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• Third Judges Case (In re Special Reference 1 of 1998): A nine-judge bench expanded the Supreme Court Collegium to a five-member body (the CJI and the four senior-most judges), while defining the High Court Collegium as the High Court Chief Justice and the two senior-most judges.

• The operational interactions between the judiciary and the Union Ministry of Law and Justice are governed by the Memorandum of Procedure (MoP).

• When the Collegium unanimously reiterates a recommended candidate returned by the Executive, that reiteration is legally binding on the Central Government.

Why Was The National Judicial Appointments Commission (NJAC) Introduced And Struck Down?

Rationale for Introduction:

• Parliament enacted the 99th Constitutional Amendment Act, 2014 alongside the statutory National Judicial Appointments Commission (NJAC) Act, 2014 to replace the judge-led selection mechanism with a transparent, multi-stakeholder constitutional commission.

• The NJAC was designed as a six-member constitutional body comprising the CJI as ex-officio Chairperson, two senior-most Supreme Court judges, the Union Minister of Law and Justice, and two eminent persons nominated by a selection panel consisting of the Prime Minister of India, the CJI, and the Leader of Opposition in Lok Sabha.

• The constitutional amendment received unanimous support across parliamentary lines and was ratified by 16 state legislatures before receiving Presidential assent.

Rationale for Striking Down (Fourth Judges Case, 2015 — Supreme Court Advocates-on-Record Association vs Union of India):

• A five-judge Constitution Bench struck down both the 99th Constitutional Amendment Act, 2014 and the NJAC Act, 2014 by a 4:1 majority verdict, holding them unconstitutional and void.

• Violation of the Basic Structure Doctrine: The Court ruled that judicial independence is a core component of the Basic Structure, and any mechanism that dilutes judicial primacy by granting non-judicial members determinative power jeopardizes institutional autonomy.

• Obnoxious Veto Provision: Section 6(6) of the NJAC Act, 2014 stipulated that no recommendation could be made if any two members dissented, enabling non-judicial or lay members to veto a candidate unanimously supported by the judicial members.

• Threat to Separation of Powers: Involving the Union Law Minister as a voting member violated Article 50 (separation of executive and judiciary), particularly because the Executive is the largest litigant in constitutional courts.

• Dissenting Opinion: Justice J. Chelameswar dissented, arguing that the Collegium System operated in absolute opacity and that executive participation did not inherently violate the Basic Structure or judicial independence.

What Are the Challenges in Higher Judicial Appointments?

Opacity and Non-Disclosure of Selection Criteria:

• The Collegium System operates without a published eligibility matrix, standardized scoring criteria, or disclosed evaluation norms for assessing legal acumen, disposal rates, and integrity.

• Candidates rejected or bypassed by the Collegium receive no reasoned communication, creating procedural deficits that conflict with natural justice principles under Article 14 and Article 16.

High Court Vacancies and Operational Delays:

• Coordination standoffs between the judiciary and the Executive delay appointments, worsening court pendency; for instance, in July 2025, 371 out of 1,122 sanctioned High Court posts lay vacant (33%), with 193 vacancies lacking initial recommendations from High Court Collegiums.

• Local High Court Collegiums frequently fail to observe the six-month pre-vacancy recommendation timeline mandated by the Memorandum of Procedure (MoP).

Nepotism Perceptions ("Uncle Judges" Syndrome):

• Closed-door nominations give rise to allegations of preferential treatment toward legal lineages; in 2018, the Union Law Ministry flagged 11 of 33 candidates recommended by the Allahabad High Court Collegium due to direct familial links with sitting or retired judges.

Rollback of Reasoned Resolutions:

• Although the Supreme Court Collegium resolved in 2017 to publish reasoned resolutions on its portal, these disclosures were later reduced to bare outcome lists without detailed justifications.

Executive-Judiciary Standoffs:

• Unresolved friction over revising the Memorandum of Procedure (MoP)—specifically regarding open-ended "national security" rejection clauses—leads to prolonged file exchanges and stalled recommendations.

Way Forward

Statutory Establishment of an Independent Collegium Secretariat:

• India should institute a permanent, institutionalized Collegium Secretariat staffed by administrative experts to maintain candidate databases, verify credentials, conduct background checks, and track vacancy timelines.

• Example: United Kingdom Judicial Appointments Commission Secretariat Model independently conducts background verification, pre-notifies upcoming vacancies, and runs standardized assessment tests before candidate files reach selecting judges.

Codification of an Objective Evaluation Matrix:

• The judiciary must publish clear, objective evaluation standards assessing domain expertise, reported judgments, disposal rates, professional reputation, and financial integrity.

• Example: South Africa Judicial Service Commission (JSC) Public Screening Protocol evaluates candidates against five codified merit criteria alongside structured public interviews.

Finalization and Formalization of the Memorandum of Procedure (MoP):

• The Executive and the Judiciary must resolve the pending Memorandum of Procedure (MoP) by replacing vague "national security" rejection clauses with narrow, judicially reviewable parameters.

• Example: National Commission to Review the Working of the Constitution (NCRWC 2002) Framework, proposing a strict 6-month pre-vacancy notification norm for High Courts and a mandatory 60-day processing deadline for the Central Government.

Enhancing Social, Regional, and Professional Diversity:

• Selection bodies should establish pre-notification channels and open application processes for first-generation advocates, district judges, and underrepresented communities.

• Example: Parliamentary Standing Committee on Law and Justice Recommendations (2023), advocating explicit diversity mandates in the Memorandum of Procedure to ensure adequate representation for SC, ST, OBC, minority, and women candidates.

Conclusion

Reconciling judicial independence with democratic accountability requires replacing an opaque self-selection mechanism with a transparent, rule-based framework that preserves judicial primacy while securing enduring public trust.

Source: NEWINDIANEXPRESS