The National Judicial Appointments Commission

Held. By four to one the prayer for reconsideration of the Second and Third Judges cases was rejected; the Constitution (Ninety-ninth Amendment) Act 2014 was declared unconstitutional and void; the National Judicial Appointments Commission Act 2014 was declared unconstitutional and void; and the system of appointment of judges and transfer of Chief Justices and judges as it existed before the amendment, the collegium system, was declared to be operative. The Court listed the matter separately to consider measures for an improved working of the collegium. Chelameswar J. dissented.

Why it matters. It is the only occasion on which a court anywhere has struck down a constitutional amendment concerning its own composition, and it is the sharpest instance of the counter-majoritarian problem in Indian law.

The majority's reasoning

1. Independence of the judiciary is part of the basic structure. Established before this case.

2. Primacy of the judiciary in appointments is part of that independence. This is the contested step. The majority reasoned from the Second and Third Judges cases and from the structure of the Constitution that a judiciary whose members are chosen with a decisive executive voice cannot be independent.

3. The presence of the Law Minister introduces the executive into the selection. And the Government is the largest litigant before the courts.

4. The two eminent persons are undefined and their veto is decisive. No qualification is prescribed, the nomination committee has a political majority, and any two members may block.

5. Article 124C leaves the machinery to Parliament. So even a defect cured today could be reintroduced by ordinary law.

The dissent, which an answer should state

Chelameswar J. held, in substance, that the collegium is not itself a constitutional requirement but a judicial construction; that its opacity and its record do not establish that it secures independence better than a commission would; that primacy of the judiciary in appointments is not shown to be part of the basic structure merely because independence is; and that the Court was invalidating the considered decision of Parliament and of the State legislatures on a matter concerning itself.

The criticisms of the majority

Conflict of interest. The Court decided the extent of its own power, over an amendment about itself.

The counter-majoritarian difficulty at its highest. The amendment passed both Houses with the required majorities and was ratified by the necessary State legislatures. To strike it down is to override the most deliberate decision the political system can make.

Basic structure applied to a mechanism rather than a principle. Independence is a principle; primacy of the judiciary in appointments is one mechanism for securing it, and many independent judiciaries are appointed otherwise.

It left the criticised system in place. The collegium's defects, opacity, delay and the absence of criteria, were acknowledged and not cured, and the follow-up hearing on improving its working did not produce a settled memorandum of procedure.

The defences of the majority

Indian experience. The record before 1993, including supersessions after ADM Jabalpur, is what made judicial primacy seem necessary in this country whatever the position elsewhere.

The veto was the real vice. A structure in which two non-judicial members can block a unanimous judicial recommendation is not a balanced commission but an executive check.

Undefined eminent persons. A category with no qualification and a political nomination process invited exactly the influence the provision was said to prevent.

The link MU makes with accountability

MU's December 2024 question pairs the NJAC with judicial accountability, quoting Krishna Iyer J. that judicial independence is the soul of democracy. The link is this: the strongest argument FOR a commission is accountability, since the collegium answers to nobody for its choices; the strongest argument AGAINST it is independence, since a commission with an executive presence exposes the judiciary to the litigant it most often decides against. The decision preferred independence and left the accountability problem unsolved, which is the honest conclusion for an answer.

A worked example

Suppose Parliament enacts a fresh amendment creating a commission of five: the Chief Justice, three senior judges, and one eminent person nominated by the collegium itself, with decisions by majority and reasons recorded.

Would it survive? The vice identified by the majority is absent: the judiciary retains a decisive majority, there is no executive member, and no two members can veto.

What would it add? A recorded reason and an outside voice, which addresses the accountability criticism.

What the example shows. The decision did not hold that the collegium is the only permissible arrangement. It held that this commission, with this veto and this executive presence, was not.

Quick revision

1. Constitution (Ninety-ninth Amendment) Act 2014 with Articles 124A to 124C, and the NJAC Act 2014.
2. Composition: the Chief Justice as chairperson, the two next senior judges, the Union Law Minister, and two eminent persons nominated by the Prime Minister, the Chief Justice and the Leader of the Opposition.
3. The veto: no recommendation if any two members disagree.
4. Decided 16 October 2015; both the amendment and the Act declared unconstitutional and void by four to one; the collegium declared operative; Chelameswar J. dissenting.
5. Majority reasoning: independence is basic structure, judicial primacy in appointments is part of it, the Law Minister introduces the largest litigant, the eminent persons are undefined and can veto, and Article 124C leaves the machinery to Parliament.
6. Criticism: conflict of interest, the counter-majoritarian difficulty at its highest, basic structure applied to a mechanism rather than a principle, and the defects of the collegium left uncured.
7. MU pairs it with accountability: the case for a commission is accountability, the case against is independence, and the decision preferred the second.

Test yourself

1. Set out the composition of the NJAC and the feature that decided the case. The Chief Justice of India as chairperson, the two next senior-most judges of the Supreme Court, the Union Minister in charge of Law and Justice, and two eminent persons nominated by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition. The decisive feature was the veto: no recommendation could be made if any two members disagreed, so two non-judicial members could block a recommendation supported by all three judges.

2. State the majority's reasoning in three steps. That the independence of the judiciary is part of the basic structure; that primacy of the judiciary in the appointment of judges is a component of that independence; and that the NJAC removed that primacy by introducing the Union Law Minister, who represents the largest litigant before the courts, and two eminent persons of undefined qualification, any two members being able to veto a judicial recommendation.

3. Give the dissent and the strongest criticism of the majority. Chelameswar J. held that the collegium is a judicial construction rather than a constitutional requirement, that its record does not show it secures independence better than a commission would, and that primacy in appointments is not established as basic structure merely because independence is. The strongest criticism is the conflict of interest: the Court determined the extent of its own power, striking down an amendment about its own composition that had passed both Houses and been ratified by the States.

4. Why does the decision not mean that the collegium is the only permissible arrangement? Because the vices identified were specific: an executive member representing the largest litigant, eminent persons with no prescribed qualification chosen by a politically composed committee, a veto exercisable by any two members, and Article 124C leaving the machinery to ordinary legislation. A commission without those features, in which the judiciary retained a decisive majority and reasons were recorded, would not attract the same reasoning.