{"id":330982,"date":"2025-03-27T17:45:44","date_gmt":"2025-03-27T12:15:44","guid":{"rendered":"https:\/\/forumias.com\/blog\/?p=330982"},"modified":"2025-03-27T17:45:44","modified_gmt":"2025-03-27T12:15:44","slug":"national-judicial-appointments-commission-njac-explained-pointwise","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/national-judicial-appointments-commission-njac-explained-pointwise\/","title":{"rendered":"National Judicial Appointments Commission (NJAC)- Explained Pointwise"},"content":{"rendered":"

India’s judiciary, often described as the <\/span>guardian of the Constitution<\/b>, plays a crucial role in upholding the rule of law, ensuring justice, and acting as a check on the executive and legislature. <\/span>There are ~<\/span>12,000 courts – 1 Supreme Court, 21 High Courts, 3,150 District Level Courts, 4,816 Munsif \/ Magistrate Courts, and 1,964 Magistrate II Courts<\/b>. <\/span>Judicial appointments in them are governed <\/span>by Articles 124 to 147<\/b> for the <\/span>Supreme Court and 214 to 231 for the High Courts<\/b>, reflecting the centrality of an independent judiciary in the constitutional scheme.<\/span><\/p>\n\n\n\n\n
Table of Content<\/strong><\/td>\n<\/tr>\n
What are the constitutional provisions regarding Judicial appointments in India? What has been the history of evolution of the present system of appointment in India?<\/a>
\nWhy the NJAC Needs Reconsideration?<\/a>
\nWhat are the Significance and Challenges of Having an NJAC?<\/a>
\nWhat are the Significance and Challenges of the Collegium System?<\/a>
\nWhat are the core Challenges facing the Indian Judiciary?<\/a>
\nWhat Should be the Way Forward?<\/a><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

<\/a>What are the constitutional provisions regarding Judicial appointments in India? What has been the history of evolution of the present system of appointment in India?<\/span><\/strong><\/h2>\n\n\n\n\n\n
Constitutional Provisions of Judicial Appointment<\/strong><\/td>\n<\/tr>\n
Article 124 (2)<\/strong><\/td>\nEvery Judge of the Supreme Court<\/span> shall be appointed by the President<\/span> by warrant under his hand and seal after consultation<\/span> with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose. In the case of appointment of a Judge other than the Chief Justice<\/span>, the Chief Justice of India shall always be consulted.<\/td>\n<\/tr>\n
Article 217<\/strong><\/td>\nEvery Judge of a High Court shall be appointed by the President<\/span> by a warrant under his hand and seal after consultation<\/span> with the Chief Justice of India<\/span>, the Governor of the State<\/span>, and, the Chief Justice of the High Court<\/span> except in case of his\/her own appointment.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Historical Battle between Executive and Judiciary over appointments<\/strong><\/span><\/p>\n\n\n\n\n\n
Colonial Rule<\/strong><\/td>\nDuring the Colonial rule, the Judicial appointments were dominated by the executive branch<\/span>.<\/td>\n<\/tr>\n
Consitutional Debates<\/strong><\/td>\nThe framers of the Indian Constitution, were concerned about the potential for executive overreach in the appointments<\/span>. They sought to create a balanced system of Judicial appointment<\/span> to ensure judicial independence. Art 124(2) and Art 217 were aimed at balancing the powers of executive and judiciary in safeguarding judicial appointments.<\/td>\n<\/tr>\n
Judicial Interventions<\/strong><\/td>\nA series of rulings by the Supreme Court of India in the First, Second, and Third Judges case, led to the establishment of collegium system in India. The Judiciary gained a significant role in appointing judges, thereby reducing the executive’s influence.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

First, Second and Third Judges Case<\/strong><\/span><\/p>\n\n\n\n\n\n
First Judges Case (1981)<\/strong><\/td>\nSC in the First Judges case ruled that consultation<\/span> under Art 124 does not mean concurrence<\/span>. The president in not bound by the CJI’s advice.<\/td>\n<\/tr>\n
Second Judges Case (1993)<\/strong><\/td>\nSC overruled its previous decision in the First Judges case and asserted that<\/span> ‘consultation<\/span>‘ meant ‘concurrence<\/span>‘. The CJI is required to formulate its advice based on a collegium of judges<\/span> consisting of CJI and two senior most SC- judges.<\/td>\n<\/tr>\n
Third Judges Case (1998)<\/strong><\/td>\nSC expanded the collegium to a five member body<\/span> to include the CJI and the four senior most judges of the court after the CJI. This further entrenched judicial control over appointments<\/span>.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

NJAC Act and the Judicial Respose<\/strong><\/span><\/p>\n\n\n\n\n
99th Constitutional Amendment Act 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014<\/strong><\/td>\nThe NJAC was proposed to be an independent Commission to replace the Collegium System<\/span> to appoint Judges to the higher Judiciary.
\nMembersip-<\/strong> It was to be a six member body consisting of
\n(a) The Chief Justice of India<\/span> as the ex-officio Chairperson
\n(b) Two senior-most Supreme Court Judges<\/span> as ex-officio members
\n(c) The Union Minister of Law and Justice<\/span> as ex-officio member
\n(d) Two eminent persons<\/span> from civil society. (The eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha. One of the eminent persons was to be nominated from SC\/ST\/OBC\/minorities or women)
\nVeto Power-<\/strong> The Act empowered any 2 members of the NJAC to veto a recommendation<\/span> if they did not agree with it.<\/td>\n<\/tr>\n
Fourth Judges Case (2015)<\/strong><\/span><\/td>\nThe Supreme Court declared the 99th Amendment Act and the NJAC Act as unconstitutional. Supreme Court struck down the National Judicial Appointments Commission (NJAC) and reaffirmed the collegium system. SC held that NJAC impinged on the independence of the Judiciary<\/span> and undermined the basic structure<\/span> of the Constitution.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

<\/a>Why the NJAC Needs Reconsideration?<\/span><\/b><\/h2>\n

1. Judicial Primacy Retained: <\/b>The NJAC preserved judiciary\u2019s primacy (3\/6 judicial members), while <\/span>introducing checks and diverse inputs<\/b>.<\/span> Could have been “read down” to retain constitutionality instead of outright striking it down <\/span>(as suggested by Fali Nariman).<\/b><\/p>\n

2. Democratic Mandate: 543 members of Parliament<\/b> voted for it (barring one dissent).<\/span> Passed by <\/span>16 state assemblies<\/b> indicating <\/span>federal consensus<\/b> and <\/span>public mandate<\/b> for reform.<\/span><\/p>\n

3. Global Comparisons: UK, South Africa, and others<\/b> employ mixed models involving judiciary, executive, and civil society not unilateral control.<\/span><\/p>\n

<\/a>What are the Significance and Challenges of having an NJAC?<\/b><\/span><\/h2>\n\n\n\n\n\n\n\n\n
Significance<\/b><\/td>\nChallenges<\/b><\/td>\n<\/tr>\n
Transparency & Accountability<\/b> \u2013 Multi-stakeholder model reduces opacity. <\/span>Justice Verma & ARC supported <\/b>participatory appointments.<\/span><\/td>\nThreat to Judicial Independence<\/b> \u2013 Violation of Doctrine of <\/span>Stare Decisis<\/b> i.e. respect for precedent. Inclusion of the executive violates separation of powers. In <\/span>SC AoR Assn. v. Union of India (2015)<\/b> struck down NJAC.<\/span><\/td>\n<\/tr>\n
Checks nepotism- Ends<\/b> judges-only coterie. <\/span>Law Commission 230th Report flagged<\/b> favoritism in collegium<\/span><\/td>\nEminent Person Ambiguity<\/b> \u2013 No clear criteria for selection. <\/span>Vidhi Legal <\/b>raised concern over vagueness<\/span><\/td>\n<\/tr>\n
Public Trust & Legitimacy<\/b> \u2013 Wider representation increases public confidence. <\/span>CPR and Second ARC<\/b> advocated inclusive models<\/span><\/td>\nPoliticisation Risk<\/b> \u2013 Eminent persons may be politically affiliated.\u00a0 <\/span>PRS Legislative Research<\/b> flagged possible <\/span>executive packing<\/b><\/td>\n<\/tr>\n
International Best Practices<\/b> \u2013 Aligns with systems in UK, South Africa.<\/span><\/td>\nNo SOP or Safeguards<\/b> \u2013 NJAC lacked operational clarity. No tie-break or dispute-resolution rules defined in the Act.<\/span><\/td>\n<\/tr>\n
Balanced Power Structure<\/b> \u2013 Judiciary, Executive, Civil Society involved. Supported by <\/span>Justice Venkatachaliah Commission (2002).<\/b><\/td>\nBasic Structure Violation<\/b> \u2013 NJAC viewed as undermining judicial primacy<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\u00a0<\/a>What are the Significance and Challenges of the Collegium System?<\/span><\/b><\/h2>\n\n\n\n\n\n\n\n\n
Significance<\/b><\/td>\nChallenges<\/b><\/td>\n<\/tr>\n
Judicial Independence<\/b> \u2013 No executive role ensures autonomy. Kesavananda Bharati Case (1973), Second Judges Case (1993).<\/span><\/td>\nOpaque Process<\/b> \u2013 No criteria or transparency. <\/span>Law Commission 214th Report & Justice Chelameswar<\/b> criticized lack of records or reasons<\/span><\/td>\n<\/tr>\n
Institutional Continuity<\/b> \u2013 Judges best assess competence. Justice Lodha: \u201cJudges know the court better.\u201d<\/span><\/td>\nUncle Judge Syndrome- Nepotism & favouritism<\/b> in selections seen as biased. <\/span>Law Commission 230th Report <\/b>highlighted the <\/span>\u201csons and nephews\u201d<\/b> pattern.<\/span><\/td>\n<\/tr>\n
Stability<\/b> \u2013 No political turnovers affect appointments.\u00a0 Third Judges Case (1998) institutionalized collegium to prevent arbitrary decisions<\/span><\/td>\nNo Accountability<\/b> \u2013 No review of decisions. Justice Kurian Joseph and others demanded internal reform and feedback mechanisms<\/span><\/td>\n<\/tr>\n
Constitutional Backing<\/b> \u2013 Upheld by Supreme Court. NJAC Verdict (2015): Collegium protected under Basic Structure<\/span><\/td>\nVacancies & Delays<\/b> \u2013 Leads to huge backlogs. 30% HC posts vacant in 2024; many files pending with Centre<\/span><\/td>\n<\/tr>\n
Guards Against Politicisation<\/b> \u2013 Purely judicial selection. No \u201cpolitical loyalty test\u201d like in some Western democracies<\/span><\/td>\nInconsistent Standards<\/b> \u2013 Merit often overlooked, reversals without explanation. Justice Ruma Pal called it \u201cmysterious and arbitrary.\u201d<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

<\/a>What are the core Challenges facing the Indian Judiciary?<\/span><\/b><\/span><\/h2>\n

1. Judges Appointing Judges Dilemma: <\/b>The <\/span>Collegium System<\/b> lacks transparency, criteria, and accountability.<\/span> No formal procedure\/reasons for selection\/rejection are made public, which affects <\/span>public trust<\/b> and raises concerns of <\/span>elitism and nepotism<\/b>.<\/span><\/p>\n

2. Justice Delayed is Justice Denied<\/b>: Over <\/span>70,000 cases are pending before the Supreme Court<\/b>, <\/span>60 lakh in High Courts<\/b>, and more than <\/span>4 crore in subordinate courts<\/b> (NJDG, 2024).<\/b> Causes include inadequate judge strength, procedural delays, frequent adjournments, and lack of judicial infrastructure. <\/span>India has only 21 judges per million population (against the Law Commission\u2019s recommendation of 50).<\/b><\/p>\n

3. Lack of Transparency and Accountability: <\/b>Judiciary is exempt from <\/span>RTI disclosure<\/b>, though <\/span>CJI is a public authority under RTI<\/b>.<\/span> There is no clear <\/span>code of conduct or performance appraisal<\/b> for <\/span>judges, unlike bureaucrats or legislators.<\/b><\/p>\n

4. Judicial Corruption and Ethical Deficit: <\/b>Allegations against sitting judges <\/span>(e.g., Justice P.D. Dinakaran, Justice Soumitra Sen, Justice Verma)<\/b> reveal disciplinary gaps.<\/span> Impeachment proceedings<\/b> are rare and cumbersome<\/span>.<\/b><\/p>\n

5. Executive-Judiciary Tussles and Judicial Overreach: <\/b>The judiciary has often been accused of <\/span>encroaching into the executive\u2019s domain<\/b>, leading to friction.<\/span> Cases like <\/span>Arun Gopal v. Union of India (2022)<\/b> raised concerns over excessive interference in policy matters <\/span>(e.g., environmental regulations, administrative orders).<\/b><\/p>\n

6. Underrepresentation and Lack of Diversity:<\/b> Only<\/span> 12% representation of women<\/b> (as of 2024).<\/span> There is poor representation from <\/span>SCs\/STs\/OBCs and minorities<\/b>, violating the constitutional spirit of <\/span>social justice (Article 15, 16)<\/b>.<\/span><\/p>\n

7. Insufficient Judicial Infrastructure: <\/b>According to the <\/span>India Justice Report 2023<\/b>, many courtrooms are still without proper Wi-Fi, digitization, or sitting facilities for judges and litigants.<\/span> Delayed computerization has undermined the potential of <\/span>e-Courts Phase II and III<\/b>.<\/span><\/p>\n

<\/a>What Should be the Way Forward?<\/span><\/b><\/span><\/h2>\n

1. Revisiting the NJAC judgment<\/b>: Reconsideration by a <\/span>larger Constitutional Bench<\/b>, as was done in Second Judges case. Justice Kurian\u2019s regret and other observations indicate scope for change.<\/span><\/p>\n

2. Judicial Appointments Bill 2.0<\/b>: vise NJAC to preserve independence while ensuring transparency. Include clear criteria, fixed timelines, and institutional records.<\/span><\/p>\n

3. Public and Parliamentary Oversight<\/b>: Set up a <\/span>Judicial Appointments Oversight Committee<\/b> to ensure due process. Strengthen Parliamentary debate on appointments.<\/span><\/p>\n

4. Transparency via Digitization<\/b>: While live-streaming may not be feasible, recorded minutes and reasoned decisions must be published.<\/span><\/p>\n

5. All India Judicial Services (AIJS)\u2013 <\/b>Several experts have argued for establishment of AIJS to improve the quality of judges in the lower Judiciary. This should be consulted and implemented post consensus among all stakeholders.<\/span><\/p>\n

6. Judicial Appointments Secretariat<\/b>: As proposed by the <\/span>Justice Venkatachaliah Commission<\/b> \u2013 provide logistical and data support to Collegium.<\/span><\/p>\n

7. Time-bound Clearance Mechanism: <\/b>Mandate decisions within <\/span>3 months<\/b> from both Collegium and executive, to reduce pendency and avoid institutional standoffs.<\/span><\/p>\n\n\n\n
Read more<\/strong>– The Indian Express<\/a>
\nUPSC Syllabus- GS 2<\/strong>– Issues Related to Judiciary<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n","protected":false},"excerpt":{"rendered":"

India’s judiciary, often described as the guardian of the Constitution, plays a crucial role in upholding the rule of law, ensuring justice, and acting as a check on the executive and legislature. There are ~12,000 courts – 1 Supreme Court, 21 High Courts, 3,150 District Level Courts, 4,816 Munsif \/ Magistrate Courts, and 1,964 Magistrate… Continue reading National Judicial Appointments Commission (NJAC)- Explained Pointwise<\/span><\/a><\/p>\n","protected":false},"author":10367,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[130],"tags":[],"class_list":["post-330982","post","type-post","status-publish","format-standard","hentry","category-7-pm","entry"],"jetpack_featured_media_url":"","views":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/330982","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/10367"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=330982"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/330982\/revisions"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=330982"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=330982"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=330982"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}