DIVYA

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI

NJAC VS. COLLEGIUM: WHICH ONE IS SUITABLE FOR INDIAN JUDICIARY?

Collegium system is a system through which appointments of the judges of high court and
Supreme Court are carried. This system does not have any statutory provision neither it is
followed by the any act of parliament. This system of appointment of judges was established
by series of Supreme Court cases popularly known as Judges’ cases. First case in this series
was SP Gupta v. Union of India 1which gave the power to executive for the appointment and
Chief Justice should have minimum say in appointment of the judges and there is no primacy
of chief justice in appointment according to the constitution of India. Supreme Court
Advocates-on-Record Association Vs Union of India, 19932, In this case a nine judge bench
over ruled the case of SP Gupta and set down the procedure of collegium for appointment of
the judges. This Judgment gave power to Chief Justice the power appoint the Judges over
executive. Also, it focused on the word consolation in the Article 143 of Indian Constitution
that this word could not remove the role of Chief justice in appointment of the Judges. Also
executive cannot have equal power as it is the decision related to judiciary. President K.R.
Narayanan gave the presidential reference to Supreme Court that word consolation in Article
143 means that there cannot be complete power to Chief Justice3. With this reference apex
court comes with guidelines for appointment resulting in Present Collegium system. This
system includes President with 4 most senior judges to take decision of appointment and
executive being the authority to issue the appointment.

On other hand National Judicial Appointment commission (NJAC) is the system in which a
commission is appointed which includes 3 members from judicial services and 3 non judicial
members. There was NJAC act passed in the parliament in 2014. 99th amendment of Indian
constitution added section 124A which is about the formation of NJCA. This act regulates
transfer and appointment of judges in higher judiciary with the criteria’s such as ability,
seniority or other criteria decided under NJAC regulations. This was established by Act
passed in parliament.45National judicial appointment gives veto to two members to pass the
decision with their discretion.

1
SP Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149
2
Supreme Court Advocates-on-Record Association Vs Union of India, (1993) 4 SCC 441 : AIR 1994 SC 268
(34)
3
Special reference no. 1 of 1998, AIR 1999 SC 1
4
99th Amendment, Constitution of India
Collegium system there was lack of implementation leading to vacancies which means
judiciary even senior judges were not able to perform efficiently in this process. According to
constitution president has the authority to appoint the judges after consulting to Judiciary but
it is opposite in case of collegium system where judiciary have major in appointment than
acting as mere consulting body. On other hand National Judicial appointment commission
overcomes the backlashes of Collegium system but have another area to focus on. Two
eminent personalities are choosed by President, Prime minister and Chief justice which
makes the selection process biased violating the right to equality. This makes this system
biased in the appointment and transfer of Judges of higher judiciary. Also it leads to
interference of legislature in judiciary. This is against the basic structure of constitution to
have independent Judiciary.

It could be seen that appointment system in Judiciary is quite controversial as these system
various backlashes leading to biased decisions in appointment and involvement of legislative
and executive powers questioning the independence of judiciary. An alternative can be that
we must setup a National Judicial appointment commission which is free from influence of
Judiciary and legislative. There will be a 6 bench commission involving the eminent
personalities and bureaucrats. They will take decision on the basis of seniority, merit and
experience which will make the appointment process unbiased. These appointments will be
made by president as in case of election commission. Also there will be no veto power and
having the decision in democratically. Hence the appointment system will be more fair and
unbiased if the decision is taken by third person rather than the involvement of Judiciary and
Legislature.

5
Shambhu Sharan & Gunjan Chhabra, The National Judicial Appointment Commission - A Critique ALERT,
(12:00p.m., 18 April, 2018),
http://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Aug/The%20National%20Judicial
%20Appointment%20Commission%20-.pdf