A Critical Study Of The Grounds Declaring NJAC Unconstitutional

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T17:13:00.868295+00:00

Updated: 2026-08-26T17:12:39.859+00:00

A CRITICAL STUDY OF THE GROUNDS DECLARING NJAC

UNCONSTITUTIONAL

Trisha Aggarwal, Amity University, Uttar Pradesh (Amity Law School, Noida)

ABSTRACT

In 2014, the National Judicial Appointments Commission was established to oversee the appointment of judges to higher judiciary, effectively replacing the longstanding collegium system. This shift aimed to enhance judicial independence and transfer appointment powers from the executive to the judiciary. However, despite its theoretical fairness, concerns about nepotism persisted within this framework. The collegium system had been criticized for its lack of transparency and accountability. In 2015, the Supreme Court struck down the NJAC1, citing its potential threat to judicial independence. The ruling underscored the need for a judiciary free from favoritism and vested interests. The paper examines the constitutional grounds declaring the NJAC as unconstitutional, while also addressing the issues at hand.

It advocates for a transparent appointment process inspired by practices in other jurisdictions. The paper contends that the Supreme Court should have scrutinized the NJAC’s provisions more thoroughly, suggesting that only unconstitutional elements be removed while preserving beneficial aspects of judicial appointments.

1 Supreme Court Advocate on Record Association v. Union of India, 2015 SCC Online SC 964.

Background of the Case In late 2014, the Indian Parliament enacted two key pieces of legislation to establish the NJAC, namely, the Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act.2 The constitutional amendment modified Articles 124 and

217 of the Constitution.3 The 99th Amendment replaced the term “consultation” in these

articles with “on the recommendation of the National Judicial Appointments Commission,”4 making NJAC's recommendations on judicial appointments binding on the President. Additionally, it outlined the composition and functions of the NJAC. Article 124A established that NJAC would comprise of the Chief Justice of India, the next two most senior Supreme Court judges, the Union Minister of Law and Justice, and two eminent persons5. Article 124B defined NJAC's responsibilities, which included recommending appointments to both the Supreme Court and high courts, suggesting transfers of judges between high courts, and ensuring that nominees possess ability and integrity. Article 124C allowed Parliament to regulate appointment procedures while empowering NJAC to create necessary regulations.

The accompanying NJAC Act detailed that NJAC could issue regulations to implement its provisions and largely left procedural determinations to its discretion. 6 However, a significant restriction was that NJAC could not recommend a nominee for judicial office unless there was concurrence among at least two of its members. 7 This provision was crucial in subsequent legal challenges as it granted any two members, including the eminent persons, veto power over judicial nominations. Supreme Court’s Judgment The Supreme Court Advocates-on-Record Association and several Senior Advocates filed writ petitions in the Supreme Court, challenging the constitutionality of the 99th 2 The Constitution (Ninety-ninth Amendment) Act, 2014; National Judicial Appointments Commission Act, 2014 (No. 40 of 2014).

3 The Constitution of India, arts. 222, 224.

4 The Constitution (Ninety-ninth Amendment) Act, art. 2.

5 The “eminent persons” were to be nominated by a committee comprised of the prime minister, the leader of the opposition in the Lok Sabha (the lower house of Parliament), and the Chief Justice.

6 National Judicial Appointments Commission Act, 2014 (No. 40 of 2014), arts. 5, 6, 9, 12.

7 Id. art. 5(2).

Amendment and the NJAC Act. The petitions argued that the NJAC undermined the judiciary's independence, violating the basic structure of the Indian Constitution. The matter was referred to a 5-judge bench, in lieu of constitutional interpretation.8 The NJAC Judgment, included 5 opinions reaching a split decision of 4:1 with all justices delivering opinions based on merits. Primarily, two preliminary matters were dealt with –

1. Objections to Justice Khehar’s involvement in the case, contending that, as a member of

the collegium system, he could not remain impartial. They were dismissed, stating that if accepted, it would disqualify every Justice due to their potential role in the collegium.

2. The UOI requested the Court to review the 2nd and 3rd Judges’ Cases. The request was,

initially, denied but later the majority opinion regarding the constitutional validity of 99th Amendment, intertwined with the analysis of the two precedents. Several key conclusions emerged from the judgment. The Court affirmed that judicial primacy in appointments is mandated by the Constitution and is part of its unamendable basic structure because it is essential for judicial independence. Resultantly, the NJAC was declared unconstitutional for violating these principles. Justice Khehar identified two primary ways this violation occurred – first, under the NJAC Act, any two members could veto a nomination; second, he criticized those two eminent persons, who might lack legal expertise, could override nominations supported by senior Justices. Additionally, the court found that the absence of qualification requirements for these eminent persons rendered it unconstitutionally vague.

The Court also noted potential conflicts of interest arising from the participation of the Union Minister of Law and Justice in judicial appointments. Although this minister did not have veto power or a decisive vote, his presence on the NJAC was seen as undermining judicial independence and violating separation of powers, which is another fundamental aspect of constitutional structure. 8 Article 145(3) of the Constitution requires that a minimum of five Justices adjudicate constitutional matters. Supra note 3, art. 145.

Grounds of Unconstitutionality The National Judicial Appointments Commission system for appointment of judges was declared unconstitutional for 4 major reasons. There is a risk of misuse since appointments to the higher judiciary would be predominantly controlled by the executive.9 The system suffers from arbitrariness, as there are no clear criteria for defining who qualifies as an “eminent person”. Additionally, the veto power granted to any two members raises concerns about potential misuse. Finally, there are significant worries regarding the independence of the judiciary, given that high courts and the Supreme Court are responsible for reviewing actions taken by both the executive and legislative branches.10

1. Arbitrariness in Appointment

One of the fundamental principles of constitutional law is non-arbitrariness, the principle of which was established in E. P. Royappa Case11. Justice P. N. Bhagwati remarked in Maneka Gandhi Case12, that arbitrariness is the antithesis of equality. Article 1413, also, guarantees equality and non-arbitrariness in decision-making. The then CJI Subba Rao observed that if the law requires executive authorities to act in a specific manner, any deviation from this without a discernible principle can be deemed arbitrary. 14 Thus, a process that does not establish criteria for assessing eminence violates the fundamental right against arbitrary action.

15 The procedure of appointment of two “eminent persons” to the NJAC lacks any defined process or criteria for evaluating their eminence, leaving this determination entirely to a committee made up of the Prime Minister, the leader of the opposition, and the CJI. The term, also, provided excessive flexibility in appointing individuals to the committee and grants the executive a majority in this three-member committee. The absence of checks and balances

9 Rudra, Explained: How The Collegium System Of Judicial Appointments Came To Be, And The Problems

Plaguing It available at: https://swarajyamag.com/ideas/explained-how-the-collegium-system-of-judicialappointments-came-to-be-and-the-problems-plaguing-it. (last visited on Oct 19, 2024). 10 Arvind Dattar, “Eight Fatal Flaws: The Failings of the National Judicial Appointments Commission”, Oxford Academic, Aug. 22, 2019.

11 E.P. Royappa v. Tamil Nadu, AIR 1974 SC 555.

12 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

13 Supra note 3, art. 14.

14 State of A.P. v. Nalla Raja Reddy, AIR 1967 SC 1458.

15 Union of India v. International Trading Co., (2003) 5 SCC 437.

in this selection process rendered it arbitrary and unjust. The bench, unanimously, reaffirmed the principle and emphasized on responsibilities of constitutional functionaries for exercising of their powers. Evidently, the method of appointing judges must not only be non-arbitrary but also perceived as transparent and aligned with established democratic principles. The absence of selection criteria, qualifications, guidance for assessing suitability, or measures to evaluate relevant experience complicates efforts to ensure non-arbitrary decision-making.16

2. Integrity of the Office of Chief Justice of India

Within the Indian constitutional framework, the judiciary occupies a unique position, as it is not only tasked with adjudicating disputes but also with the vital task of performing judicial review. As evidenced by the case of Indira Nehru Gandhi v. Raj Narain17, it is crucial to maintain judicial independence from both the legislature and executive branches. The institutional integrity of the CJI would be compromised if this office were to participate in a selection committee alongside the Prime Minister and the leader of the opposition. The CJI's institutional integrity is closely tied to judicial independence, which was observed as the part of the basic structure of the Indian Constitution.

18 Thus, the role of CJI as a member of the three-person selection committee responsible for choosing the two eminent persons warrants careful scrutiny as it creates a significant conflict regarding the separation of powers. In a properly functioning constitutional system, the legislature enacts laws, the executive implements them, and the judiciary adjudicates disputes. Ideally, if each branch adheres to separation of powers principles and operates within its designated limits, governance can proceed effectively. 19 However, the NJAC poses a challenge to this aspect of constitutionalism; its current form does not safeguard judicial independence20 and places the judiciary in a precarious position regarding its ability to function autonomously. 16Shambhu Sharan, Gunjan Chhabra, “The National Judicial Appointment Commission - A Critique”, Manupatra Newsletter Archives, Aug. 25, 2015.

17 AIR 1975 SC 2299.

18 Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428.

19 Namit Sharma v Union of India, (2013) 1 SCC 745.

20 Madras Bar Association v. Union of India, (2010) 11 SCC 1.

3. Veto Powers

One of the significant issues with the NJAC Act is its provision granting veto powers to two members of the commission. It is concerning that a democratic constitutional framework would include a legislative provision that explicitly allows such veto power. These veto rights enable an arbitrary approach to decision-making within the NJAC, as there are no established criteria for exercising this power.21 This could lead to a constitutional crisis where any two members could effectively block all judicial appointments. Democratic governance necessitates that democratic processes be institutionalized in appointment procedures. The veto powers granted to two members undermine efforts to create a fair and transparent selection process for judges. The potential for arbitrary use of these veto powers provided a strong basis for declaring the legislation unconstitutional.

4. The Doctrine of Basic Structure

In the landmark case of Kesavananda Bharti v. State of Kerala22, the 13-judge bench of the Supreme Court ruled that Parliament could not enact constitutional amendments that undermine the “basic structure” of the Constitution. Over time, the significance of this basic structure doctrine has been reinforced by numerous Supreme Court decisions, with judicial independence being recognized as an essential component of this framework. 23 Any method of appointing judges that allows for political interference poses a threat to judicial independence; a concern unanimously acknowledged by the members of the Constituent Assembly. Despite Parliament's well-intentioned efforts to establish an institutional mechanism for appointing judges to the high courts and the Supreme Court, both the Constitution (Ninety-Ninth Amendment) Act and the NJAC Act were deemed unconstitutional for these reasons.

Understandably, any established system pertaining to appointment of judges, which shall replace the collegium system, should fulfil at least 4 requirements.

21 N Kannadasan v. Ajoy Khose, (2009) 7 SCC 1.

22 (1973) 4 SCC 225.

23 Supra note 18.

4.1 Constitutional Scrutiny

The constitutional scrutiny of both the NJAC Act and the 99th Amendment is essential. These acts must be evaluated in light of Supreme Court rulings that affirm Parliament's authority to amend any provisions of the Constitution, provided such amendments do not alter its basic structure. Although the Court has refrained from defining basic structure24, it is crucial to recognize that any change that fundamentally modifies how governmental powers are exercised will prompt constitutional review. It is noteworthy that the processes for appointing judges have been firmly established through the Supreme Court's decisions in the 1st, 2nd, and 3rd Judges’ cases.

The constitutional challenges likely to arise regarding the NJAC's system for appointing judges to the higher judiciary will include an Article 14 argument, asserting that the method of appointments is arbitrary; questions surrounding the interpretation of “eminent persons” as defined in the NJAC Act; concerns about the potential misuse of veto powers granted to any two NJAC members; and, most critically, whether the NJAC system threatens judicial independence by failing to shield the appointment process from political influences.

4.2 Independence of Judiciary

The independence of the judiciary is a fundamental aspect of the constitutional framework, ensuring that it remains free from the influences of both the legislature and the executive. 25 Any attempt to modify the existing system for appointing judges must be carefully assessed to understand how the new procedures might impact judicial independence. The NJAC framework poses a threat to this independence, particularly due to the CJI's role in the threemember selection committee tasked with choosing two eminent persons. This situation places the CJI in a challenging position, as past indicates that governments often leverage such opportunities to negotiate appointments that align with their interests. While negotiations and diverse interests can be appropriate in many contexts, judicial appointments require a different approach.

The involvement of the CJI in these discussions complicates matters, as there should be no room for negotiations or compromises akin to

24 Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.

25 Supra note 19.

those seen in other committee processes. The integrity of judicial appointments must be preserved to maintain the judiciary's independence and impartiality.26

4.3 No Arbitrariness

The procedure for appointing judges must avoid arbitrariness. One effective way to minimize this risk is by providing clearer definitions for the terms used in legislation. The phrase “eminent persons” creates an opportunity for arbitrary power exercise. While not every subjective exercise of power is inherently arbitrary, it is essential to recognize that checks and balances are crucial for mitigating the potential for arbitrary actions. A broad provision allowing for the selection of “eminent persons” inevitably increases the likelihood of arbitrariness in their selection. There is a genuine risk that political or other vested interests could dominate the decisionmaking process when selecting these “eminent persons”. Consequently, the CJI might find themselves relegated to a passive role in a process largely controlled by the legislature and the executive.

4.4 Expectations of Transparency

An essential aspect of public accountability is transparency, which can be enhanced by ensuring that the process of appointing judges is democratic. However, the new framework for the NJAC is not only non-democratic but also poses a risk of creating a constitutional crisis due to the veto powers granted to any two members. One of the significant drawbacks of the collegium system has been its lack of transparency in judicial appointments, as noted by Lord Cooke in 2001. 27 The reasons behind the appointment or rejection of certain judges remain unknown to those outside the system. 28 The NJAC framework further undermines transparency by allowing any two members to exercise veto powers without providing justification.

Unfortunately, the new law governing judicial appointments violates the basic structure of the Constitution and undermines judicial independence, institutionalizing a process that could lead to arbitrary exercises of power.

26 Supra note 20.

27 Registrar General, High Court v. R Gandhi, (2014) 11 SCC 547.

28 In Re: Natural Resources Allocation, (2012) 10 SCC 1.

Conclusion The establishment of the National Judicial Appointments Commission represented a significant shift in India's judicial appointment process, aiming to enhance transparency and independence. However, the Supreme Court's subsequent ruling declaring the NJAC unconstitutional highlighted critical concerns regarding judicial independence, arbitrariness, and the potential for political interference. As we reflect on these developments, it is imperative to propose a reformed framework for judicial appointments that upholds the core principles of constitutional integrity, transparency, and accountability. First and foremost, any new system must ensure judicial independence by safeguarding the appointment process from political influences.

This can be achieved by clearly delineating the roles of various stakeholders in the appointment process while preventing any one branch of government from exerting undue control. For instance, establishing a more balanced composition of the selection committee that includes a diverse range of legal experts and representatives from civil society could mitigate risks associated with political favouritism. Secondly, to combat arbitrariness, it is essential to define clear criteria for what constitutes “eminent persons” within the selection committee. This definition should be transparent and publicly available, thereby reducing ambiguity and ensuring that appointments are based on merit rather than subjective interpretations. Implementing a robust vetting process that includes public input could further enhance accountability.

Moreover, transparency must be a cornerstone of any new framework. The appointment process should be open to scrutiny, with detailed records maintained regarding how decisions are made and the rationale behind each appointment or rejection. Regular reports on the functioning of the selection committee should be made available to the public, ensuring that citizens are informed about how their judiciary is being constituted. Lastly, ongoing constitutional scrutiny is vital. Any reforms should be subject to rigorous examination to ensure they do not infringe upon the basic structure of the Constitution. This includes maintaining a clear separation of powers among the legislative, executive, and judicial branches. Future legislation must be crafted with careful attention to these principles to avoid repeating past mistakes.

In conclusion, while the NJAC aimed to create a more democratic framework for judicial appointments, its implementation revealed significant flaws that threaten judicial independence and accountability. By prioritizing transparency, defining clear criteria for appointments, ensuring independence from political influence, and committing to ongoing constitutional scrutiny, India can develop a robust system for appointing judges that aligns with democratic values and preserves the integrity of its judiciary. These steps will not only restore public confidence in the judicial system but also fortify its role as an impartial arbiter in upholding justice.