Explained | Why is the NJAC verdict at the centre of the impasse over appointment of judges?

In 2015, the Supreme Court admitted that all is not well with the collegium system of “judges appointing judges”

The story so far: Vice-President Jagdeep Dhankhar last week entered the heated debate between the Central government and the Supreme Court over the matter of judicial appointments. Referring to the 2015 verdict of the top court which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, Mr. Dhankhar asked how the judiciary could have run down a unanimously passed constitutional provision which reflected “the will of people”.

The seven-year-old verdict has been invoked by both sides- while the Court asked if the government’s “unhappiness” over the failure of the NJAC was why it was sitting on the names recommended by the Supreme Court Collegium, Law Minister Kiren Rijiju has commented on public fora about how the NJAC could have provided a transparent alternative to the decades-old Collegium system of appointing judges.

In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system. The two Bills were ratified by the required number of State Legislatures and got the President’s assent on December 31, 2014.

Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country. Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the Supreme Court and the high courts, “as the President may deem necessary”. So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three Supreme Court judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary. 

In order to replace the system, which received criticism over the years for its lack of transparency, the Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124. Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system, Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts, and Article 124C accorded express authority to Parliament to make laws regulating the the NJAC’s functioning. The NJAC was to be composed of:

The NJAC Act, meanwhile, prescribed the procedure to be followed by the Commission to appoint judges. The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations”. The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.

In the collegium system, on the other hand, a group of the senior-most judges makes appointments to the higher judiciary. This system has been operational for nearly three decades.