Judicial Appointments Conundrum

Key Milestones and Selected Op-eds

October 20, 2015

Collegium was revived to avoid chaos and

tyranny
1.

If the collegium was not revived, then there were chances that
President may become a tyrant by assuming absolute powers to
appoint judges on his own.

2.

This is how the Supreme Courts Constitution Bench explained

its decision to restore the collegium.

3.

Previously, Solicitor-General had argued against the revival of

the collegium in case the Bench decided to strike down the NJAC.

4.

This would have given rise to a void, where President would

assume absolute powers to appoint a judge to the SC without
consulting the CJI.
Justice Kurian said that Constitutional amendment is a substitution and
once the substitution was held to be bad in law, the original provisionwould
return to life.
The Hindu
October 17, 2015

SC Bench strikes down NJAC Act as

unconstitutional and void
The collegium system remains operative

1.

Declaring that the judiciary cannot risk being caught in a web of

indebtedness towards the government, the SC rejected the NJAC Act and
the 99th Constitutional Amendment.

2.

The Bench in a majority of 4:1 rejected the NJAC Act and the
Constitutional Amendment as unconstitutional and void.

3.

But interestingly, the Bench admitted that all is not well even with
the collegium system of judges appointing judges.
After receiving Presidential assent on Dec. 31, 2014, the collegium
system of appointing judges to the SC and high courts was replaced by a
new body called the National Judicial Appointments
Commission.
The Hindu
August 28, 2015

[Discuss] The big NJAC debate

The NJAC Conundrum A tacit attempt to subvert the independence
of Judiciary or a panacea for Judicial Accountability? Discuss.

Feel free to air your views, opinions, queries, inputs. You may take a
cue from the following but are free to digress within the scope of the
discussion at hand:
1.

The Highlights

2.

Present Status

3.

The SC debate

4.

Collegium vs NJAC

5.

Any Global Experience

6.

Proponents vs Opponents
HT
July 31, 2015

[op-ed snap] Interpretive remedies in NJAC case

1.

Op-ed suggests that besides the binary options of accepting or

striking down the NJAC, the SC can also try to find a middle path and
interpret it in a way that is constitutional. Following are some proposals:

2.

Defining eminent person more narrowly with little scope of

exploitation.

3.

Modifying the process of appointment of eminent person and

providing strict guidelines.

4.

Increasing judiciarys say in the NJAC by giving exclusive veto

power to judges.

5.

Laying down fixed rules and regulations to be followed in the

appointment of judges.

6.

Op-ed also suggests that in doing so, the SC must maintain the thin
line between judicial interpretation and legislative amendment, failing
which the judiciary could be seen as overstepping in the legislatures turf.

The Hindu
July 14, 2015

[cd explains] The Three Judges Case

Custom
July 9, 2015

[op-ed snap] NJAC: Objection Overruled

As per the Second Judges Case, the Constitution Bench of the SC hearing
a petition challenging NJAC Act and CA Act might find it difficult to
strike down the laws on the grounds that they destroy judicial
independence and hence the basic structure of the Indian Constitution.

The Hindu
June 20, 2015

[op-ed snap] Allowing judges to be judged

1.

Regular evaluation of judicial performance is a springboard for

ensuring greater judicial accountability but we do not have any
institutional mechanism.

2.

Judicial accountability promotes 3 discrete values rule of law,

public confidence in the judiciary and constitutional responsibility.

3.

Our constitution protect judges against the will of the masses, the
will of parliament and the will of central government but does not provide
provide for the accountability of judges.

4.

According to the constitution judges can be impeached by

parliament on the ground of proved misbehaviour or incapacity.

5.

US has a merit plan under which not only are the judges
appointment on merit but their continuance in office is decided on the
basis of nonpartisan elections.
The Hindu
June 20, 2015

Government cant be out of NJAC, says SC

The debate was triggered by counsel Anil Divan, who said the NJAC Act
was flawed as the commission would be totally dependent on inputs
from government departments.

But you have to trust someone. What if we remove the Executive from the
appointment process? How will they [NJAC] get information? Only the
government has the machinery to gather intelligence on the sensitivity, family,
integrity, etc., of a person under consideration This is the fact, whether you
like it or not, Justice J.S. Khehar, who heads the five-judge Constitution
Bench, told Mr. Divan.

Another issue:
1.

The NJAC Act did not spell out the criteria to select eminent
persons.

2.

We wonder if eminence in the NJAC Act was the same quality the
government had found in a person chosen to head the Film and Television
Institute of India.

The Hindu
June 15, 2015

NJAC: What do you mean by by a fit CJI?

When you say someone should be fit to be a judge, do you mean that we will
need a medical certificate saying it is assured we will live till 65 years of age?

A provision in the NJAC Act, dealing with the appointment of the Chief
Justice of India says the senior-most judge would be appointed CJI,
provided he is fit.
Custom
June 10, 2015

Judicial appointments are too vital for a hit-andtrial method

1.

SC objected to the Centres argument that the National Judicial

Appointments Commission should be given a chance under the hit-andtrial method.

2.

Attorney General, Mukul Rohatgi pleaded that The NJAC is a

wholesome mechanism in which the voice of the people plays a part in the
judicial appointments.

3.

The Bench had asked Mr. Rohatgi to hand over a list of bad
appointments of judges made by the Supreme Court Collegium during the
last two decades.
The Hindu
May 2, 2015

Eminent person debate hits NJAC

1.

Can yoga guru Ramdev, conferred cabinet rank by the Haryana

government, qualify to be an eminent person for inclusion in the 6member National Judicial Appointments Commission created to selecting
judges?

2.

The 5-judge constitution bench headed by Justice JS

Khehar appeared to agree with this reasoning.

3.

The bench said, We will ask the AG how the NJAC can provide a
meaningful role to the judiciary. How can the participants be made
accountable?
The Times Of India
May 1, 2015

No going back on NJAC, says govt

1.

Centres argument Parliament had created NJAC to broad-base

the judges selection process by including all three organs of governance
judiciary, executive and legislature instead of leaving it only to judges.

2.

Ram Jethmalani, arguing against said that the SC-devised

collegium system protected the independence of judiciary & it had just
one flaw of being non-transparent.

3.

Justice Khehar gave an example, Parents of a child do look for a

groom or a bride for their child. The match works well some times and
some times doesnt. When it doesnt, it does not mean that the parents
have become bad.
The Times Of India
April 29, 2015

Seniority bogs down judicial appointments

1.

In a sharp criticism of the highest judiciary, the Centre said there

is no place for merit.

2.

Mukul Rohtagi gave the examples of apex courts in countries such

as the USA where the Chief Justice was the youngest among the sitting
judges.

3.

Wording of Section 5 (1) of the NJAC Act seems vague.

4.

The provision dealing with the appointment of the Chief Justice of

India says the senior-most judge would be appointed CJI, provided he is
fit.

5.

What does fit mean here? Does this mean a person is suitable if he
is fit or strong?
The Hindu
April 28, 2015

NJAC Act violates basic structure of Constitution:

Bar bodies to SC
1.

Why? because the body (NJAC) sought to be created, does not have
the salient features of the body (collegium) substituted.

2.

Arguments In the NJAC, no weightage or primacy has been

given to the views of the CJI in selection of judges.

3.

Who will decide if the panel gets divided vertically on the question
of appointment of a judge.

4.

Preponderance of views of 3 senior most judges of the apex court,

as recommended by the Venkatachaliah panel, has not been not provided
for by the NJAC Act.
Business Stan
April 28, 2015

CJI recuses from NJAC, govt calls it

unconstitutional
1.

CJI H.L. Dattu has declined to join the NJAC until the SC decides
on its constitutional validity.

2.

The CJIs recusal brought the NJAC to a grinding halt as it was

likely that two senior-most judges of the SC, who are members of the
commission, would follow suit.

3.

Arguments from Mukul Rohtagi The Constitution provides that

eminent persons will be selected by a troika of PM, CJI and leader of
opposition. Can the mandate of the Constitution be stultified? How can
that be?
The Times Of India
April 17, 2015

Justice Dave recuses himself from NJAC Bench

1.

Senior advocate Fali Nariman pointed out there is a clear conflict

of interest as Justice Dave is also a member of the NJAC.

2.

Justice Dave, who heads the five-judge bench, is the third seniormost Supreme Court judge.

3.

He is also a member of the NJAC as per the statute which

prescribes that the six-member Commission will have the CJI and the next
2 senior most judges as its members.
The Hindu
April 16, 2015

[cd explains] Whats in the new NJAC bill?

Custom
April 15, 2015

Govt. notifies NJAC, puts an end to collegium

1.

The notification brings into immediate effect the National Judicial

Appointments Commission Act, 2014, and the 99th Constitution
Amendment Act.

2.

Now, the political class and civil society have an equal voice, along
with the judiciary, in the appointment and transfer of judges in the highest
judiciary.

3.

While referring the petitions to a larger Bench, the

SC had refused to pass a stay order on the law coming into force.
The Hindu
March 18, 2015

99th Amendment Act 2014 replaces Collegium

System with NJAC (2/2)
1.

The Attorney-General (Mukul Rohtagi) & Sr. Advocate (Fali

Nariman) have locked horns on the bill.

2.

Interestingly, AG says that the court cannot test the constitutional

validity of the NJAC until the law was notified. Prez. has given its assent to
the bill but Gov. has not yet notified.

3.

Fali Nariman held a view that The moment an enactment comes

into operation, it becomes law and can be challenged on any permissible
grounds.
The Hindu
March 18, 2015

99th Amendment Act 2014 replaces Collegium

System with NJAC (1/2)
1.

What was? The Collegium system is one where the Chief Justice
of India and a forum of 4 senior-most judges of the SC recommend
appointments and transfers of judges.

2.

The system was evolved through Supreme Court judgments in

the Three Judges Cases. However, it has no place in the Indian
Constitution.

3.

The 99th amendment to the Constitution introduces NJAC,

replacing the Collegium system.

4.

Under Article 124A, the NJAC has 6 members the CJI, 2 seniormost judges. The remaining 3 are the Union Law Minister and two
eminent persons.

5.

They are to be appointed by the PM, the Leader of the Opposition

and the CJI.
The Hindu