Chief Justice of India on NJAC Revival Plea

Why is it in News?

• A fresh plea has been filed in the Supreme Court seeking revival of the National Judicial Appointments Commission (NJAC) and abolition of the Collegium system.
• The petitioner has arraigned the CJI, the Supreme Court Collegium, the Union government, and several parties as respondents.
• The plea terms the 2015 striking down of NJAC as a “great wrong”, arguing that it replaced the will of Parliament with the opinion of four judges.
• CJI Surya Kant stated the Court would consider the plea.
• Parallel political context: Debate over judicial transparency, “judicial primacy”, and allegations of nepotism resurfaces.

Relevance

GS-II: Polity & Governance

• Separation of powers.
• Judicial independence.
• Constitutional amendments (99th CAA).
• Role of Parliament vs Judiciary.
• Appointment procedures.
• Basic Structure doctrine.

GS-II: Parliament & Judiciary Relations

• Institutional trust deficit.
• Checks and balances architecture.

Judicial Appointments in India

Constitutional Scheme

• Articles 124, 217: Judges of Supreme Court and High Courts appointed by the President after consultation with CJI, judges of SC, and Governor/Chief Justice of the state.
• Original intent: Executive had a major role; judiciary was “consulted”.

Shift to Judicial Primacy (Judges Cases)

• First Judges Case (1981): Executive primacy.
• Second Judges Case (1993): Judicial primacy; Collegium created.
• Third Judges Case (1998): Collegium expanded to 5 (SC) and 3 (HC).

Collegium System — Key Features

• Supreme Court Collegium: CJI + 4 senior-most SC judges.
• High Court Collegium: Chief Justice + 2 senior-most HC judges.
• Functions: Recommends appointments, elevations, transfers.
• Known issues:
  • Opacity (no stated criteria; limited public disclosure).
  • Alleged nepotism, favouritism, regional bias.
  • Frequent executive–judiciary clashes (delays in clearance).
  • HC vacancies persistently high (30–35% over years).

99th Constitutional Amendment (2014) + NJAC Act (2014)

Composition:

1. CJI (Chairperson)
2. Two senior-most SC judges
3. Law Minister
4. Two eminent persons (selected by PM, CJI, LoP panel)

Objectives

• Democratise appointments.
• Introduce checks and balances.
• Increase transparency.
• Reduce allegations of judicial monopoly.

Why NJAC Was Struck Down (2015, 4:1 bench)

Core Reason: Violation of Judicial Independence

• Presence of Law Minister + eminent persons → possible executive interference.
• Judicial independence recognised as part of Basic Structure (Kesavananda Bharati).
• Eminent persons’ veto could block judicial choices.

Justice J. Chelameswar dissent

• Criticised Collegium as opaque and unaccountable.
• Strongly supported NJAC as balancing mechanism.

Current Plea: Key Arguments

• Judgment should be declared void ab initio.
• Collegium = “synonym for nepotism and favouritism”.
• Appointments remain a “riddle wrapped in a mystery inside an enigma” (reference to Churchill).
• Parliament acted using its constituent power, yet its amendment was struck down.
• Striking NJAC down “reduced Parliament to an inferior tribunal”.

CJI’s Initial Response

• CJI Surya Kant said the SC “would consider the plea”, indicating judicial openness to examine the argument (though reopening a decided Constitution Bench judgment is rare and requires rigor).

Constitutional & Jurisprudential Analysis

A. Can a past Constitution Bench judgment be reopened?

• Within Court’s powers under Article 137 (Review) + Curative jurisdiction, but:
  • Very high threshold.
  • Time-lapse of a decade reduces probability.

B. Legislature vs Judiciary: Separation of Powers Debate

• Legislature: Claims judicial monopoly is anti-democratic.
• Judiciary: Claims executive’s presence jeopardises independence.

C. Basic Structure Doctrine at Core

• Judicial independence = non-negotiable.
• The test: Does NJAC dilute independence?
• Academic debate: scholars like Upendra Baxi, Madhav Khosla argue both sides.

Policy Issues Driving Renewed Debate

• Persistent vacancy crisis: 450+ HC vacancies (varied over years).
• Case pendency: Over 5 crore cases across courts.
• Perception battles: From “judicial overreach” to “executive non-cooperation”.
• Collegium’s opaque resolutions despite partial publication.

Critical Evaluation 

Strengths of Collegium

• Shields judiciary from executive capture.
• Ensures judicial primacy (consistently upheld by SC).
• Protects constitutional adjudication.

Weaknesses of Collegium

• Opaque and non-accountable.
• No institutionalised criteria for merit/representation.
• Alleged kinship networks.

Strengths of NJAC Idea

• Adds democratic legitimacy.
• Potential for transparency reforms.
• Balances judiciary–executive roles.

Weaknesses of NJAC (as struck down)

• Eminent persons’ veto could stall judiciary.
• Politicisation of appointments possible.
• Ambiguous selection of “eminent persons”.

Middle Path Possibilities (Recommended by Experts)

• Retain judicial primacy but:
  • Increase transparency.
  • Codify objective criteria (merit, diversity).
  • Create an independent secretariat for appointments.
  • Publish reasons for rejection/selection.

---