NJAC Struck Down: 5 Shocking Reasons Why Judicial Appointments Remain Controversial

The National Judicial Appointments Commission (NJAC) was introduced in 2014 to replace the collegium system, aiming to make judicial appointments more transparent and accountable. It was struck down by the Supreme Court in 2015, as the court ruled that giving the government a role in appointing judges would compromise judicial independence, which is a fundamental part of the Constitution’s basic structure. Before the collegium system, the executive had significant control over judicial appointments, leading to conflicts, especially during the Emergency era.

The collegium system, developed through Supreme Court rulings, ensures that senior judges have the final say in selecting judges, though it has been criticized for its lack of transparency. The NJAC proposed a six-member panel, including government representatives and eminent persons, but the provision allowing two members to veto appointments led to its rejection. Experts argue that a revised NJAC, with safeguards to maintain judicial independence, could be reconsidered.

Some suggest that giving the Chief Justice of India a casting vote might have resolved concerns while ensuring a more structured selection process. While the collegium system remains in place, the debate over judicial reforms and the need for a balanced approach continues.

NJAC Struck Down: 5 Shocking Reasons Why Judicial Appointments Remain Controversial

The recent recovery of a significant amount of cash from the residence of Delhi High Court Judge Justice Yashwant Varma has reignited debates over judicial accountability and the process of appointing judges in India. Vice President Jagdeep Dhankhar recently suggested that if the National Judicial Appointments Commission (NJAC) had not been struck down by the Supreme Court in 2015, the system might have functioned more transparently. This has revived discussions on balancing judicial independence with accountability within India’s legal framework.

Historical Context: Evolution of Judicial Appointments

After independence, India’s Constitution granted the executive (government) the authority to appoint judges to the Supreme Court and High Courts. For decades, this process remained largely unchallenged. However, tensions between the judiciary and the government escalated during the 1970s, particularly after the Emergency era. A key flashpoint occurred when Prime Minister Indira Gandhi’s administration disregarded seniority norms to appoint favored judges as Chief Justices, sidelining more experienced candidates. This perceived interference led the Supreme Court to gradually establish the collegium system through judicial rulings, shifting control over appointments to the judiciary itself.

What Is the Collegium System?

The collegium system is not explicitly mentioned in the Constitution but was established through three landmark Supreme Court judgments in the 1980s and 1990s (commonly referred to as the Judges Cases). Under this system, a group of senior judges—led by the Chief Justice of India (CJI)—recommends candidates for judicial appointments. A five-member collegium (CJI and four senior-most judges) selects Supreme Court judges, while a three-member collegium (CJI and two senior judges) oversees High Court appointments. The government can raise objections, but the judiciary has the final say.

The Supreme Court justified this system by declaring judicial independence a “basic feature” of the Constitution, which Parliament cannot alter. Supporters argue that the collegium shields judges from political influence, ensuring impartiality. Critics, however, claim it lacks transparency, operates opaquely, and excludes voices outside the judiciary.

The NJAC: An Attempt to Reform the System

In 2014, the Modi government introduced the National Judicial Appointments Commission (NJAC) to replace the collegium. The NJAC Act and the 99th Constitutional Amendment were passed with overwhelming support in Parliament and ratified by 16 state legislatures. The commission aimed to bring more transparency and accountability to judicial appointments.

The NJAC’s structure included:

• The Chief Justice of India (CJI) as chairperson.
• Two senior Supreme Court judges.
• The Union Law Minister.
• Two “eminent persons” chosen by a committee consisting of the CJI, Prime Minister, and Leader of the Opposition. At least one of these individuals had to represent marginalized communities (SC/ST/OBC/minorities) or be a woman.

The NJAC required at least five out of six members to approve an appointment. However, a controversial clause allowed any two members to veto a candidate.

Why Did the Supreme Court Strike Down the NJAC?

In 2015, a five-judge Supreme Court bench ruled by a 4-1 majority that the NJAC was unconstitutional. The court held that the commission violated judicial independence by giving the government and non-judicial members a decisive role in appointments. The veto power clause was particularly contentious, as it allowed the Law Minister and one “eminent person” to jointly block a candidate, potentially giving the executive undue influence.

The court emphasized that while the collegium system had flaws, it was still the best safeguard against political interference. The inclusion of the Law Minister and unelected civil society members, the judges argued, diluted judicial autonomy—considered a “basic structure” of the Constitution that cannot be altered.

Can the NJAC Be Revived?

The NJAC was struck down before implementation, so its effectiveness remains untested. However, legal experts believe a revised version addressing the court’s concerns could be possible. For instance, removing the veto clause and ensuring judicial dominance in the commission (such as giving the CJI a casting vote) might pass constitutional scrutiny. Some judges have also acknowledged the need for reforms, suggesting that a collaborative model balancing transparency and independence could work.

Yet, reviving the NJAC would require fresh legislation and a constitutional amendment, which demands significant political consensus. The current government has occasionally criticized the collegium system but has not proposed a concrete alternative. Meanwhile, the collegium continues to face criticism for delays in appointments, lack of diversity, and opaque decision-making.

Conclusion

The NJAC debate reflects a broader struggle between judicial independence and accountability. While the collegium system insulates judges from political pressure, its opacity fuels calls for reform. A middle ground—perhaps a reformed NJAC with safeguards ensuring judicial primacy and transparency—could address these concerns. However, rebuilding trust between the judiciary and the government remains crucial. For now, the collegium system continues, but the search for a fairer, more inclusive mechanism is far from over.