[Vol 3/Issue 1/ April 2017] [ISSN 2394-9295]

Kislay Raj


8th Semester

Amity Law School, Noida

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Supreme Court AOR’s V/S Union of India {W.P No (Civil)- 13 of 2015}, popularly known as NJAC judgement has led to a debate among all the pillars of the democracy. This verdict is not only about the appointment of the judges by the judges, but the independence of the Indian judiciary. A five-member constitutional bench of the Supreme Court with ratio of 4:1 gave a landmark judgement which declared the 99th amendment unconstitutional and rendered National Judicial Appointments Committee nugatory.
This judgement is not an example of the judicial overreach, as any legislative act whose constitutionality has been challenged can be reviewed through the process of the judicial review by the upper judiciary. In this case the petitioner argued that the 99th constitutional amendment is violating the basic structure of the Indian constitution.
The main question which was there before the hon’ble Supreme Court was selection and appointment of the judges to the higher judiciary and the transfer to Chief Justices and Judges of one High Court to another. Judges to the SC and HC’s are appointed article 124 and 217 respectively. NJAC Act, 2014 was passed by the parliament. NJAC was all set to remove the collegium system. It comprised of CJI, Law minister of India, PM of India, leader of the opposition party and two other eminent persons.
In this article the topic on which we would focus is Collegium System and the validity of 99th amendment. A critical analysis of the judgement has been laid down. A brief about the appointment of judges in other countries has also been discussed.


Key words: Collegium, Indian Constitution, 99th Amendment, Judicial Overreach, Appointment of Judges.

NJAC Judgement (Background to the challenge)

Judges to the Supreme Court of India and High Court of States are appointed under articles 124 and 217 respectively. Transfer of High Court judges and Chief Justices of one High Court to another is made under article 222 of the Indian constitution. Additional and acting judges are appointed under 224 and 224 (A).
In the case of S.P Gupta V/s President of India and Ors. (First Judges Case) dealt with a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. However in view of the majority decision (4:3) all the transferred cases and writ petitions were dismissed. In this case on the matter of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our constitutional polity. The court also observed that the power of appointment of High Court judges is to be exercised by the central government after consulting the Chief Justice of India, the governor of the state and the chief justice of High Court and of Supreme Court, were constitutional functionaries and that the consultative role, and the power of appointments rested solely and exclusively in the decision of the central government.
In the case of Supreme Court AOR and another V/S UOI a nine judges bench was constituted the two major questions i.e. the position of CJI with reference to primacy and justiciability of fixation of judges. This judgement is also termed as quiet revolution because at this time NarasimhaRao’s minority government was focusing on economic liberalisation with mandal and mandir issue was at its apex. The hon’ble SC observed that the process of appointment of judges to the Supreme Court and High Courts is an integrated participatory consultative process. In this case it was also observed that the opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court judges/ Chief Justices. Appointment of CJI should be the senior most judge of the SC considered fit to hold the office. In the situation of any of any dispute or the conflicting opinions, the opinion of the judiciary symbolised by the view of CJI and formed in the manner indicated, has primacy. The bench interpreted word article “consultation” used in articles 124 and 217 means concurrence.
In 3rd judges case the expression ‘consultation with the Chief justice of India’ in articles 217(1) of the constitution of India requires consultation with plurality of judges in formation of the opinion of the CJI.
After that 99th constitutional amendment was introduced in the parliament by which the National Judicial Appointments Commission (NJAC) was all set to remove the collegium system for appointment of judges in higher courts. A new article 124(A), 124(B) and 124(C) was added to the constitution. It comprised of CJI, two other senior most judges of SC , the union minister of law and justice and two eminent persons (nominated by a committee consisting of the CJI , Prime Minister of India, and leader of opposition in LokSabha and in case there is no leader of opposition then the leader of single largest party in LokSabha).
Issues Raised:
Parliament enacted the NJAC Act, which also received the assent from the President 31.12.2014. The same was also brought into force, with effect from 13.04.2015. The above amendment was challenged through several petitions which were collectively heard.
There are mainly three issues involved in this case:
1. The first and foremost issue is how the judges of the higher courts i.e. the High Court and the Supreme Court should be selected
2. Whether the 99th amendment is ultra vires of the constitution as it obliterate the basic structure of the constitution.
3. Whether judicial review in this case is correct.


The judgment is given by a constitutional bench (comprises of 5 members) with 4:1 verdict against the NJAC act, striking down the 99th constitutional amendment. The lone dissenting voice was given by the JastiChelameswar J. which was against the existing collegium system. He believed that only an independent and efficient judicial system can create confidence in the society which it serves and increasing pendency of cases before constitutional courts is not a sigh of efficiency. According to him the basic feature of the Indian Constitution doesn’t confer any fundamental or institutional right in favour of individuals .
However other judges (i.e. Jagdish Singh Kehar, Madan B. Lokur, KurienJoseh and Adarsh Kumar Goel, JJ.) of the bench were completely and unanimously in favour of rendering the 99th constitutional amendment unconstitutional as it is ultra vires the constitution. They were consistent with the view that primacy of judiciary in appointment of judges cannot be compromised. It is held that giving NJAC to appoint judges in higher judiciary under article 124(A) and giving power to parliament for regulating the procedure and to lay down the manner of selection was also under article 124 (C) is unconstitutional as it violate the basic structure of the constitution and is a potential threat and impinge upon the independence of judiciary in India.
It is also held that even if the doctrine of basic structure is not applied in judging the validity of the parliament statute, independence of judiciary and rule of law are parts of article 14, 19 and 21 of the constitution and absence of independence of judiciary effects the said fundamental rights. Hence, the NJAC Act is thus liable to be struck down. Also the Indian constitution has given power to the Supreme Court to review any amendment if it violates the basic structure of the constitution.

Judicial Appointment in Other Countries:

Collegium system is sui generissystem which is prevailing in India where the judges appoint the judges, though in certain cases president may not approve the name of the judges recommended by the CJI. However in different countries there are different ways by which the judges are appointed in the higher judiciary. Judicial appointments in U.S.A are made by the presidents. They are nominated by the president and confirmed by the Senate of U.S as per the constitution. Article III of the American Constitution deals with the appointment and removal of the judges.
In Australia, according to their constitution which is known as Commonwealth of Australia Constitution Act section 72, governor general in council shall appoint the justices of High Courts and other courts created by the Parliament. They can be removed by the Governor-General in Council, on an address from both the houses of the parliament on the ground of proved misbehaviour or incapacity. Attorney General recommends judicial appointments to the cabinet and Governor-General. In UK the judges of the highest court are appointed by a fiver person Appointment Commission. In Israel judges are appointed by the president nominated by judge’s nomination committee. In South Africa 23 members judicial services commission advices the president to appoint judges in higher judiciary7.
Thus from the above paragraph it is quite clear that different have different styles to select the judges in their countries. In India the role of CJI is quiet prominent. In countries like US, UK, Brazil and South Africa the executive has primacy in appointment of the judges.

Critical Over view of the Judgement:

There are different kinds of views from different segments of the society. There is a great uproar among the parliamentarians, in legal fraternity on this burning topic. There is no consensus rather there are different views within the same sections. Whether this judgement is a classic example of judicial over reach or it is the instance where judicial activism saved the future of judiciary by ensuring freedom of judiciary.
Well this judgement seems to me as a verdict which tries to keep judiciary far-far away from any political intervention. Maybe the judges fear that if there is any political intervention, it will create an unnecessary liability to the judiciary and the doctrine of return the favour may apply. It is true that in India the government is one of the leading litigators in the court and if the government have a say in appointment of judges, it might unconsciously influence the judgement. This decision according to me is not a judicial overreach rather judicial review. The concept of judicial review was involved in the case of Marbury V/S Madison where the judiciary can check the law made by legislature and can render it null and void if it is unconstitutional. Here the 99th amendment was tilting the balance of favour of the executive, and thus was a potential threat to freedom of judiciary which is indisputably part of the basic structure of the constitution and sine qua non for efficient and effective judicial system, thus this amendment is sabotaging the basic structure of the constitution. Different views came from different people regarding the judgement stating that this has 100% supported by the people of the country. Firstly, I don’t agree to the fact that any bill, even unanimously passed by the parliament has100% support of the people. I can say so because those who are getting elected don’t get 100 per cent vote perhaps India has never witnessed 100% voting and it will be a utopian situation. Secondly, the judge should give judgement in compliance of the constitution unaffected by the will of the people. Finance Minister of India Mr.ArunJaitley has said that Indian tyranny of the unelected and if the unelected are undermined, democracy itself would be in danger. It is not completely true in this scenario. Alexander Hamiltion, one of the framers of American Constitution has said that where the will of the legislature declared in the statutes is in opposition to the constitution, the judges is ought to be governed by the latter, rather than former. All the three organs have derived power from the constitution and should work within their own sphere. Legislative supremacy is also limited to constitutional restrictions. If the NJAC bill would have kept in mind the concept of primacy of judiciary in appointment, the result might would have been different.
However it is also true that collegium system has not been a great success and even the judiciary admits it. This judgement though revived the pre-existing system but also decided to address the grievances related to it. Thus collegium system of appointing judges should be more clear and free from biasness.

1. Supreme Court AOR’s and Anr. V/S UOI W.P. (Civil) 13 of 2015
2. AIR 1982 SC 149
3. (199)3 4 SCC 441
4. (1982) 2 SCR 365
5. Supreme Court AOR’s V/S Union of India {W.P No (Civil)- 13 of 2015}
6. Judgeship Appointments by President , (Nov. 04, 2015, 8:20 PM),
7. NJAC V/S Collegium system and how judges are appointed in other countries , (Nov 04, 2015, 8:40 AM),
8. U.S 137 (1803)
9. Constitution’s will upheld (Nov 04,2015, 11PM),

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