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The impasse over the appointment of judges

GS Paper 2

Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary


Source: TH

 Direction: The article discusses the issue of the appointment of judges to the higher judiciary in the context of the 2015 SC’s verdict which struck down NJAC.

 Context: The Vice ­President of India recently commented on the ongoing heated debate between the Central government and the Supreme Court over the matter of judicial appointments.


Background: The VP questioned the SC’s 2015 decision, which struck down the National Judicial Appointments Commission (NJAC) and the 99th Constitutional Amendment, 2014, on the grounds of endangering judicial independence.


Changes brought by the Constitution (99th Amendment) Act, 2014:

  • In order to replace the collegium system, it introduced 3 primary Articles.
  • Article 124A, created a constitutional body – NJAC to replace the collegium system.
  • Article 124B, which conferred the NJAC powers to make appointments.
  • Article 124C, empowering Parliament to regulate the NJAC’s functioning.


Appointment procedure provided under the NJAC Act:

  • The NJAC was to recommend the Chief Justice of India and Chief Justices of the HCs based on seniority, while SC and HC judges were to be recommended based on ability, merit and other criteria.
  • Unlike the collegium system, the Act enables both executive and judicial members to serve on the NJAC and empowered any 2 members of the NJAC to veto a recommendation.


Why was the NJAC challenged?

  • In 2015, the Supreme Court Advocates­on­Record Association (SCAORA) filed a plea arguing that –
    • The NJAC took away the primacy of the judiciary’s collective opinion as it could be vetoed.
    • The amendment “severely” damaged the basic structure (independence of the judiciary) of the Constitution.


The Centre’s argument:

  • The collegium that worked on an “intra­dependence” structure has “no transparency.”
  • The Act did not deprive the judiciary of its primacy but rather diminished the executive’s power because the NJAC had only 1 member (Law Minister), as compared to 3 SC judges.
  • The amendment was “perfectly consonant” with the basic structure as it strengthened the independence of the judiciary, checks and balances and democracy.


The SC’s 2015 ruling (4:1 majority) (4th Judge Case):

  • The NJAC was unconstitutional and violated the basic structure of the constitution.
  • The Bench admitted that all was not well even with the collegium system and that the time was ripe to improve the system of judicial appointments.

Criticism of the ruling: The NJAC came through a unanimously passed constitutional provision that reflected “the will of the people,” as both the bills were ratified by the required number of State Legislatures.


Current arrangement of judicial appointments:

  • The collegium system was restored.
  • The Memorandum of Procedure (MoP) – an agreement between the judiciary and the government (which came into existence after NJAC) that outlines the criteria for appointing judges to the SC and HCs.


Insta Links:

Collegium system of appointments of judges to the HCs and the SC


Mains Links:

Q. Critically examine the Supreme Court’s judgment on ‘The National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of the higher judiciary in India. (UPSC 2017)


Prelims Links:

Consider the following statements:

    1. The Memorandum of Procedure (MoP) governs the appointment of members of the higher judiciary in India.
    2. The MoP says that the Union Minister of Law and Justice would seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.
    3. Article 124 of the Constitution contains the provisions related to MoP.

Which of the above statements is/are correct?

  1. 1 and 2 only
  2. 1 and 3 only
  3. 2 and 3 only
  4. All of the above


Solution: 1)

The MoP is the playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document – because the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or the text of the Constitution.