SUBMITTED BY : MANSI BHARGAVA

CLASS : LLB 2nd SEM

11111302249

SUBJECT : CONSTITUIONAL LAW

TOPIC OF ASSIGNMENT : NATIONAL JUDICIAL APPOINTMENT COMMISSION

SUBMITTED TO : MISS. PRACHI SHARMA MA’AM

 TABLE OF CONTENT

HEADING PAGE NO

INTRODUCTION 3

REFERENCE 3

PROCEDURE FOR SELECTION OF SC JUDGES 4

PROCEDURE FOR SELECTION OF HC JUDGES 5

TRANSFER OF CJ & HC 6

WHY WAS NJAC ACT SRUCK DOWN 7

EVOLUTION OF COLLEGIUM SYSTEM 7

WHAT IS COLLEGIUM SYSTEM 8

CONCLUSION 9
 Introduction
The National Judicial Appointments Commission (NJAC) was a body proposed by the government of
India. It was responsible for the recruitment, appointment, and transfer of judicial officers, legal officers,
and legal employees under India's central and state governments. It was created by amending the
provisions in Article. 124 of the Indian Constitution through the 99th amendment act in 2014.

The National Judicial Appointments Commission (NJAC) was a proposed constitutional body in India. It
aimed to bring reforms to the process of appointment and transfer of judges to the higher judiciary. The
NJAC was intended to replace the existing collegium system. The collegium system vested the power of
judicial appointments solely in the hands of judges.

Introduced in Lok Sabha --- Passed in Lok Sabha --- Passed in Rajya Sabha

Aug 11, 2014 Aug 13, 2014 Aug 14, 2014

Reference to Commission for filling up of vacancies

 When a vacancy arises in the SC or HCs, the central government will make a reference to the
NJAC.

 Existing vacancies will be notified to the NJAC within thirty days of the Act entering into force.

 When a vacancy arises due to the completion of term, a reference will be made to the NJAC, six
months in advance.

 For vacancies due to death or resignation, a reference must be made to the NJAC within thirty
days of its occurrence.
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.1

1
Drishtiias.com
Why was the NJAC Act struck down

The five-judge bench comprising Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel,
Justice Kurian Joseph, and Justice Jasti Chelameshwar struck down the NJAC Act along with the 99th
Constitutional Amendment Act in a 4:1 ratio. The NJAC Act was termed unconstitutional and was struck
down, citing it as having affected the independence of the judiciary. The NJAC Act was repealed by a
five-judge bench, famously known as the Fourth Judges Case, 2015. The five-judge bench decided that
the collegium system would still be operative in the appointment of judges, although they pointed out that
the collegium system is not accurate and the process of ‘judges appointing judges’ should be examined.

Every judge gave out their individual ratio decidendi, with each of them explaining their individual
reasoning behind coming to the conclusion. The crux of each of their ratios was that the judiciary should
be kept independent of the legislature and executive and that they should not indulge in the process of
appointing judges.

The Hon. Justice J.S. Khehar stated that “organic development of civil society has not as yet sufficiently
evolved.” While other judges supported Justice Khehar’s reasoning,

Justice Chelameswar held a different line of

reasoning stating that “the judiciary cannot be the only constitutional organ capable of protecting the
liberties of the people.”

Evolution of the collegium system

The formation of the collegium system owes its origin to the three landmark cases often referred to as the
“three judges case.”
S.P. Gupta v. Union of India, (1981)

Prior to the landmark case (First Judges Case), judges were appointed by the President of India but he
needed to consult with the Chief Justice of India and other judges. This case empowered the executive in
the judges’ appointment process. The key observation made in this case was that “consultation” should
not be construed as “concurrence,” which meant that the President is not bound to follow the opinion of
the Chief Justice of India in the judges’ appointment. It was also observed in this case that the transfer of
judges can also be refused due to “cogent reasons.”

Supreme Court Advocates-on-Record Association v. Union of India, (1993)

A nine-judge bench was created for the landmark case (Second Judges Case) and in this case, the bench
went the other way round and they reversed their decision of the ‘First Judges Case.’ The judgement
stated that the Chief Justice of India should be given the primary role in the appointment process of
judges. The court stated “justiciability” and “primacy” as the main reasons behind the decision. The
Supreme Court held that “consultation” really means “concurrence” and a collegium system was
introduced for the appointment of judges. The reasoning behind the collegium system’s inception was that
it shows the collective opinion of the senior-most individuals involved in the process of judicial
appointment rather than an individual opinion.

In re : Special Reference 1 of 1998

The Third Judges Case case reiterated the supremacy of the judiciary over the executive in the course of
judicial appointment. On the President’s reference, the body of the collegium system was expanded to a
five-member body (for the Supreme Court judges’ appointment), which would consist of the Chief Justice
of India and four senior-most judges. In the appointment of the High Court judges, the body of the
collegium system would consist of the Chief Justice of India and two senior-most judges.
What is the Collegium system
Prior to the inception of NJAC, judges of the High Courts and the Supreme Court were appointed by the
provisions mentioned in Articles 124 and 217 of the Constitution of India. Articles 124 and 217 state that
the President shall appoint judges to the Supreme Court and high courts after consultation with the Chief
Justice of India and other judges. The concept of the collegium system was introduced by Justice P.N.
Bhagwati in 1993, and since then, judges in the higher judiciary are appointed through the collegium
system. The collegium system was created to maintain the basic structure of the Constitution by keeping
the judiciary independent and to ensure that the Chief Justice of India does not impose his or her
individual opinion regarding the appointment of judges, but rather it is a collective opinion of the entire
body.2

2
http://blog.ipleader.in
 Conclusion

It is a sad state that an important pillar of democracy is crumbling owing to a lack of system in
the process of judicial appointment. Proactiveness has been missing in resolving the issue since
the collegium system came way back in 1993 and ever since it has been questioned even though
it has been almost 8 years since the introduction of the NJAC Act. The matter is very critical and
complex because, on the one hand, the judiciary should act independently, but on the other hand,
the legislature and the executive cannot be completely excluded. The only reasonable solution is
to amend NJAC Act in a manner in which the powers of legislature and executive are diluted but
at the same time a guideline needs to be formed and the judicial appointment should be carried
out in its accordance to ensure the transparency and to give a methodical approach towards the
appointment of judges.