National Judicial Appointments Commission

National Judicial Appointments Commission (NJAC) was a proposed body which would have been
responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was
established by amending the Constitution of India through the ninety-ninth constitution amendment vide the
Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya
Sabha on 14 August 2014. The NJAC would have replaced the collegium system (CJI and four senior most
supreme court judges) for the appointment of judges as invoked by the Supreme court via judicial fiat by a new
system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014,
was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments
Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in
India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act
and the Constitutional Amendment Act came into force from 13 April 2015.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It
brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC)
an independent commission with three senior judges, two eminent outsiders and the Law Minister.
The UPAs inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the
Modi government revive the proposal and Parliament amended the Constitution brought about the 99th
Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the
collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs,
many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be
rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding
the amendment, limited governmental interference.

The NJAC Bill: Salient features

The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha on August 11,
2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad.

The Bill has been introduced in conjunction with the Constitutional (121st Amendment) Bill, 2014, which
establishes the National Judicial Appointments Commission (NJAC).

The Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment
as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges
of High Courts (HC).

Procedure for Selection of Supreme Court judges

Chief Justice of India: The NJAC shall recommend the senior most judge of the Supreme Court for
appointment as Chief Justice of India. This is provided he is considered fit to hold the office.

SC judges: The NJAC shall recommend names of persons on the basis of their ability, merit and other
criteria specified in the regulations.

Veto power of members: The NJAC shall not recommend a person for appointment if any two of its
members do not agree to such recommendation.
 Procedure for Selection of High Courts judges

Chief Justices of HCs: The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a
High Court on the basis of seniority across High Court judges. The ability, merit and other criteria of
suitability as specified in the regulations would also be considered.

Appointment of other HC Judges:

Nominations: Nominations shall be sought from Chief Justice of the concerned High Court for
appointments of HC judges.

Eliciting views: The Commission shall nominate names for appointment of HC judges and forward such
names to the Chief Justice of the concerned HCs for his views.

In both cases, the Chief Justice of the HC shall consult two senior most judges of that HC and any other
judges and advocates as specified in the regulations.

Views of the Governor and CM: The NJAC shall elicit the views of the Governor and Chief Minister of
the state before making recommendations.

Veto power of members: The NJAC shall not recommend a person for appointment if any two
members of the Commission do not agree to such recommendation.

Transfer of Chief Justices and High Court judges:

The NJAC is to make recommendations for transfer of Chief Justices and other judges of the High Courts.

The procedure to be followed will be specified in the regulations.

Power of the President to require reconsideration

The President may require the NJAC to reconsider the recommendations made by it.

If the NJAC makes a unanimous recommendation after such reconsideration, the President shall make the
appointment accordingly.

Current Status

On 16 October, 2015 the Supreme Court upheld the collegium system and struck down the NJAC as
unconstitutional after hearing the petitions filed by Supreme Court Advocates on Record Association (SCAORA)
and others.

Earlier the validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers,
lawyer associations and groups before the Supreme Court of India through Writ Petitions. In August 2014,
Supreme Court had dismissed few Writ Petitions challenging the validity of NJAC on the ground that the challenge
was premature as the constitutional amendment and the NJAC Act had not been notified then. After the fresh
challenge in 2015 after the acts were notified, a three judge bench of the Supreme Court referred the matter to a
Constitution Bench.

The five-member Constitution bench struck down the NJAC and constitutional amendment. It has also referred to
the "insularity and independence of judiciary" as an intrinsic feature of the basic structure of the Constitution.
In the court's view, judicial independence would be compromised if the executive gains an influence in the
appointment of judges. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehars
judgment concluded that the NJAC did not provide an adequate representation, to the judicial component and
that clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of
selection and appointment of Judges It further held that Article 124A(1) is ultra vires the provisions of the
Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of
the NJAC. The clause it was held, impinged upon the principles of independence of the judiciary, as well as,
separation of powers. The clause which provided for the inclusion of two eminent persons as Members of the
NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in
appointments, as an integral part of the Constitutions basic structure. No parliamentary majority can amend
the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional
scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the
constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working
of the collegium.