Daily Editorial Analysis for 2nd December 2022

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Laying the ground to delegitimise the Supreme Court

GS PAPER 2: Judiciary

Important for

Prelims Exam: About Judiciary

Mains Exam: Implications of Collegium System


A change of guard at the office of the Chief Justice of India (CJI) on November 9 seems to have triggered a reorientation of the Union government’s strategy towards the Supreme Court. Justice D.Y. Chandrachud, the new CJI, carries a reputation of being a liberal judge with a strong and independent voice, notwithstanding his role in the 2019 Ayodhya-Babri Masjid case judgment that handed the Ruling Government its biggest legal and political victory.

Key Points

  • Union Minister of Law and Justice has displayed a keen sense of urgency in his attempts to set right the democratic deficit that has for three decades plagued the process of appointments to the higher judiciary.
  • In parallel, the Supreme Court has taken up the question of inaction on the part of the Union government in notifying recommendations made by the collegium, which is a flagrant violation of the law settled by the court in two cases in the 1990s.

National Judicial Appointments Commission (NJAC)

  • In a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.
  • The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.
  • NJAC is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.
  • A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.
  • The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).
  • According to the bill the commission will consist of the following members:
    • Chief Justice of India (Chairperson, ex officio)
    • Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
    • The Union Minister of Law and Justice, ex-officio
    • Two eminent persons (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 or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Collegium System

  • First Judges Case (1981):It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993):SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998):SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Who Heads the Collegium System?

The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court. A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

Supreme Court on NJAC

  • In 2015, a Constitution Bench of the Supreme Court struck down constitutional amendments that Parliament had effected to create the National Judicial Appointments Commission (NJAC).
  • The court’s central argument was that by removing the primacy of the judiciary in the new appointment process, the NJAC subverted the independence of the judiciary, a key component of the court’s conception of the basic structure of the Constitution.
  • At the same time, the court acknowledged that there were problems with the collegium system that required intervention.
    • This led to separate proceedings by the same Bench in which the court appointed a two-member committee of senior lawyers, one of whom was a government law officer, to compile suggestions received from the legal community. The government also put its suggestions in writing.
    • After deliberations, viable inputs were to be incorporated into a new Memorandum of Procedure (MoP) for judicial appointments.

Union Government Stance

  • Union government, through the Attorney General, took the position before the Bench that the right and power to frame the MoP was squarely in its field, going by the court’s judgments that created the collegium system.
  • The court accepted this position and closed the proceedings, providing the Union government broad guidelines on what the MoP may focus on: eligibility, transparency, formation of a secretariat, and complaints redressal during the process.
  • Some reports indicate that the court and the government could not find a common ground over suggestions received by the committee reforms to the MoP.

Government Action Regarding NJAC

  • The government’s response to the striking down of the NJAC was inaction it began to stall appointments.
  • While Union Minister of Law and Justice took exception last week to criticism from the court that the government was sitting on recommendations, this is exactly what the government did.

Supreme Court Views on Government Action

  • It belligerently opposed names it did not like and even ignored reiterations by the collegium, which, as per the law, are binding on the government.
  • An important case was that of Justice K.M. Joseph in 2018. When he was eventually appointed, he lost the seniority he would have got with the original recommendation as the names were split by the government for appointments.

Both side efforts on NJAC

  • The Union government made no attempts to revive the NJAC through Parliament by filling the gaps that the Supreme Court had pointed out in its 2015 judgment.
  • The tendency of recent CJIs to not agitate the government over these omissions, despite the deleterious effects on the institution, aided the continuation of a delicate calmness in the court-government relationship.
  • The change of guard at the office of the CJI seems to have brewed a storm that threatens to disrupt this calm.

Undermining legitimacy

  • In many countries, the judiciary has been the first target of regimes that seek to strengthen their hold over power.
  • In Hungary and Poland, in recent times, there have been overt attacks on these institutions.
  • Such attacks have changed the powers and composition of these institutions and turned them into courts conducive to the executive’s policies.
    The process of appointments to the higher judiciary remains a highly contested field.
  • Frontal attacks on the process serve as indicators of democratic backsliding.
  • In India, the court has tried to resist this process, albeit through the flawed method of the collegium system.
    • The process, initiated through a much-criticised reinterpretation of the appointment provisions in the Constitution, fails to fulfil basic demands of transparency and accountability and remains prone to charges of nepotism.
    • There is also a serious lack of social diversity in the appointments.


The antidote to this problem would be for the court to voluntarily take up reforms to the collegium system and expedite the creation of a new MoP by incorporating the legitimate concerns of the government and stakeholders at large.

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