8/18/2019 Blank 67 (2)

1/5

Question: Critical Analysis of NJAC

The case of Supreme Court Advocates on Record Association and another vs. Union of India,

better known as the NJAC judgment, was aimed to replace the Collegium system of judicial

appointment by providing a committee of individuals who would form an independent body. This

committee would have members from the Judiciary, the Executive as well people from the

society.

Evaluate this on the basis of

• Doctrine of revival of constitutional amendments.

• Test for violation of basic structure.

8/18/2019 Blank 67 (2)

2/5

Prior to the presentation of the collegium framework, judges were appointed by the executive

under the direction of the judiciary. The thought of a collegium framework was presented after

A.N.Ray's arrangement by the official was addressed as he circumvented two senior most

Supreme Court judges to end up the Chief Justice of India. In a late Supreme Court choice, the

99th amendment of the constitution along the National Judicial Appointments Commission

(NJAC) act was struck down on the premise of being void and illegal. This decision restores the

collegium framework for the appointment of judges to the Supreme Court. The court held that

NJAC leads to altering of the basic structure of the constitution as the executive now interferes

meddle with the autonomy of the judiciary while recognizing that the collegium is not sound and

sufficiently straightforward. As indicated by the NJAC, legal arrangements are to be made by a

collegium headed by Chief Justice of India, two senior most Supreme Court judges, the law and

 justice minister, and two eminent persons who are to be selected by a committee comprising the

CJI, Prime Minister and leader of the opposition.

Though the NJAC collegium system claimed to be more transparent than the previous system,yet there are a number of flaws in it. According to the Doctrine of revival of constitutional

amendments, if there was a law, which was amended to the extent the first law didn’t hold any

value, furthermore any amendments, which were made to the original law, would be held to be

unconstitutional, in such a situation the original law should come back to power. Keeping the

principle stated above in mind, Article 124 of the constitution stated the rule used for

appointment of judges. Amendments A, B and C to this article added the provisions of the

NJAC. However, the Supreme Court of India held these amendments to be unconstitutional.

Now the question before us is whether the collegium system will be put back in the system?

There were various views put forward regarding the above. Attorney general Mukul Rohatgi

argued that to retain “public confidence”, judicial appointments “must be seen both in the contextof independence of the judiciary as also the need for checks and balances on it”. (1)

Hence, It may be concluded from this that if the collegium system is not put back, it would lead

to a lot of problems,hence creating a void in the law. In the case ofProperty Owners

 Association v. State of Maharashtra, the court was asked to check the constitutional validity of

an amendment made to a certain Maharashtra Housing and Area Development Act, 1976. This

amendment to the statute sought to warrant the protection of Article 31C of the Constitution of

India, which bars any sort of constitutional challenge on the grounds of Art. 19 or 14, provided

the statute was enacted in furtherance of Art. 39 (b) or Art. 39 (c). With the coming of the 42nd

Amendment Act, this constitutional protection was extended to cover any statute, which

furthered any provision of the Part IV of our constitution. Afterwards, in the Minerva Mills case,

this extension of protection, was deemed to be unconstitutional. Moreover, theMinerva Mills Ltd.

v. Union of India case,Waman Rao v. Union of India andSanjeev Coke Manufacturing v. Bharat

Coking Coal; all three were adjudicated upon whilst naturally assuming that the original Art.

31C, prior to the 42nd Amendment, had naturally been revived.(2) However, Adv. Fali S.

Nariman, the counsel for the petitioners in theProperty Owners Association case, stated that

the contention of the doctrine of revival not being applicable to constitutional amendments was

8/18/2019 Blank 67 (2)

3/5

never raised in any of the above mentioned cases. All of these cases proceeded on the

assumption that the old provisions are spontaneously revived. In theProperty Owners

 Association case, the three judge bench explicitly stated that the question of the applicability of

the doctrine of revival still remains to be contested. However, it is worth noting that, close

scrutiny of the order of the three judge bench reveals that the only matter referred to a five judge

bench was regarding the interpretation of Art. 39 (b) & (c). Currently, the matter lies before a

nine judge bench, which is yet to be constituted. In a plethora of other cases too, it can be seen

that courts are adopting what the three judge bench here did; assumed the old provision to

rise(3). As a result, the current situation is very vague and only riddled with assumptions that the

doctrine of revival should be applicable to constitutional amendments as well; there is clearly

lack of adjudication on this matter. Hence, even in the current case at hand, the NJAC judgment,

the court has continued this trend and has assumed that the collegium system should come

back into play. I personally, am not arguing that the doctrine of revival should not apply to

constitutional amendments, but am only highlighting the lack of precedents to support such a

position, and the need to adjudicate on this matter.

The fundamental structure of the constitution which safeguards the separation of powers and

freedom of judiciary from the executive stays ensured under the NJAC , as the administrator of

NJAC is the Chief Justice of India. NJAC is a good sign of democracy which ensures that no

organ of the state enjoys supreme sovereignty. A major part of NJAC case is that the CJI would

have the final word while appointing judges and one of the major contentions in the NJAC case

was that whether CJI’s primacy became a fundamental part of the constitution which could not

be changed by the Parliament. If the independence of judiciary is maintained, which the NJACdoes, then such changes in the conventions of the collegium system do not amount to a change

in the basic structure of the constitution. In aim of protecting public confidence, Attorney General

Mukul Rohatgi said that judicial appointments “must be seen both in the context of

independence of the judiciary as also the need for checks and balances on it”. (4)In a recent

debate ,where Justice Lodha was defending the collegium system, he admitted that 'the

collegium system is opaque and secretive and has three faults which are lack of transparency,

lack of an expert body like a standing committee to help the collegium and the executive's

indifferent role in the participatory process.' Justice Kurian Joseph, having the majority while

delivered the NJAC judgment, criticized the collegium system by stating that several deserving

persons were ignored while many unworthy candidates were included in the past.(4)

Articles 124A, B and C were added through the 99th amendment of the Constitution in which

Article 124A talks about the structure of NJAC which would include two ‘eminent’ persons

nominated by the CJI, Prime Minister and the leader of the opposition. In an abstract thought, to

increase public confidence in the judiciary and fair appointment of judges eminent persons

being on board seems to be a necessity than just a good idea, presence of eminent persons on

NJAC would allow for diversity in the commission and ensure that selected judges would be

8/18/2019 Blank 67 (2)

4/5

perceptive to people’s interests. Such independent individuals would come up with several

different viewpoints and having no particular personal stand in the appointment process they

would help in keeping a check against discretionary exercise of power by any other member of

the NJAC. The majority opinion held that NJAC curbs the role of judiciary in the judicial

appointments but if half the members of NJAC would be judges then it cannot be synonymous to

reducing judiciary’s role.(5) Of course a two-member veto can prevent the judges from allowing

their pick to not go through the appointment but the reverse is also true that any two persons be

it judges, politicians, eminent persons or a combination consisting of a mix of any two members

can hold a veto. There could be a deadlock if there are altercations between the members of

NJAC but at least no one could force an appointment of a particular judge. The NJAC does not

moderate the role of judiciary, instead it balances the executive and judiciary and allows the

politicians some say in the process which was the original intention of Article 124.(6) Article

124C gives powers to the Parliament to make ordinary laws in the future for smooth functioning

of NJAC which in itself does not affect the separation of powers. Under the constitution, the

Parliament has legislative supremacy, as result of which it was able to pass the 99thamendment which creates NJAC. It has been considered normal to redistribute powers in

support of one of the organs of democracy with respect to separation of powers.

Thus it may be concluded that, though the NJAC has a number of positive points about it, but if

it is analyzed from the perspective of revival of constitutional amendments and basic structure

doctrine, there are number of flaws in it, which need to be addressed to make it a better system

for appointment. Though the NJAC may have its flaws, but it is a refreshment to the previous

system of appointment, which had been going on in India, since many years. The introduction of

a new system, like this one, is not only imperative to todays judicial system, it is also the need ofthe hour. I would like to conclude with "Reform that you may preserve", The parting words of the

lone dissenting judge J Chelameswar, quoted from the speech of Macaulay.(7)

8/18/2019 Blank 67 (2)

5/5

Bibliography

(1) http://www.ijra.in/uploads/42013.3534633912FULLPAPER_Abhilasha.S.G.pdf.

(2)http://www.indiacode.nic.in/acts2014/40_of_2014.pdf.

(3)http://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-

decoded/article7768919.ece

(4)http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-

system/article7769266.ece

(5)http://www.thestatesman.com/mobi/news/india/njac-unconstitutional-rules-sc/97482.html

(6)http://journal.lawmantra.co.in/wp-content/uploads/2015/05/211.pdf.

(7)http://www.firstpost.com/politics/njac-verdict-how-the-ill-defined-basic-structure-came-handy-

for-the-judiciary-to-expand-its-power-2473344.html

http://www.ijra.in/uploads/42013.3534633912FULLPAPER_Abhilasha.S.G.pdfhttp://www.ijra.in/uploads/42013.3534633912FULLPAPER_Abhilasha.S.G.pdfhttp://www.indiacode.nic.in/acts2014/40_of_2014.pdfhttp://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article7768919.ecehttp://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article7768919.ecehttp://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ecehttp://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ecehttp://www.thestatesman.com/mobi/news/india/njac-unconstitutional-rules-sc/97482.htmlhttp://journal.lawmantra.co.in/wp-content/uploads/2015/05/211.pdfhttp://www.firstpost.com/politics/njac-verdict-how-the-ill-defined-basic-structure-came-handy-for-the-judiciary-to-expand-its-power-2473344.htmlhttp://www.firstpost.com/politics/njac-verdict-how-the-ill-defined-basic-structure-came-handy-for-the-judiciary-to-expand-its-power-2473344.htmlhttp://www.ijra.in/uploads/42013.3534633912FULLPAPER_Abhilasha.S.G.pdfhttp://www.indiacode.nic.in/acts2014/40_of_2014.pdfhttp://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article7768919.ecehttp://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article7768919.ecehttp://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ecehttp://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ecehttp://www.thestatesman.com/mobi/news/india/njac-unconstitutional-rules-sc/97482.htmlhttp://journal.lawmantra.co.in/wp-content/uploads/2015/05/211.pdfhttp://www.firstpost.com/politics/njac-verdict-how-the-ill-defined-basic-structure-came-handy-for-the-judiciary-to-expand-its-power-2473344.htmlhttp://www.firstpost.com/politics/njac-verdict-how-the-ill-defined-basic-structure-came-handy-for-the-judiciary-to-expand-its-power-2473344.html