Critically examine the Supreme Court's judgement on National Judicial Appointments Commission Act, 2014…

Question

Critically examine the Supreme Court's judgement on National Judicial Appointments Commission Act, 2014 with reference to appointment of judges of higher judiciary in India.

Ghissu Editorial · Accepted Answer

The Supreme Court rightly struck down the NJAC in 2015 to protect judicial primacy and independence, but it preserved an opaque collegium it admitted was flawed. A central flaw it found was that any two NJAC members, including the Law Minister, could veto all three judges.

**Introduction**

The 99th Amendment and the NJAC Act, 2014 sought to replace the collegium with a six-member commission under Article 124A. In the Fourth Judges Case (2015), a Constitution Bench struck both down by 4:1 and revived the collegium.

**What the Court Held and Where It Was Right**

SKETCH: comparison | NJAC vs Collegium
a: NJAC (2014)
b: Collegium
- Six members :: Five judges
- Law Minister inside :: No executive seat
- Two-member veto :: Judicial primacy
- Statutory procedure :: Judge-made convention

1. **Primacy as independence**: The majority held that judicial primacy in appointments is part of judicial independence, a basic feature, so the amendment failed the Kesavananda Bharati (1973) test.
2. **Executive in the room**: The Law Minister's seat risked reciprocity, since the government is the largest litigant before the courts.
3. **Veto by non-judges**: Any two members could block a candidate, so the minister and two undefined "eminent persons" could override all three judges.

**Where the Judgment Falls Short**

1. **Text versus primacy**: Articles 124(2) and 217 require only "consultation"; primacy was read in by the 1993 judgment.
2. **Chelameswar's dissent**: Justice J. Chelameswar held that collegium opacity, not executive participation, was the real threat to credibility.
3. **Accountability gap**: The Court conceded the collegium's flaws and sought a revised Memorandum of Procedure, still disputed; online resolutions since 2017 do not explain choices.
4. **Narrow bench**: The Law Ministry told a parliamentary panel in 2023 that about 79% of High Court judges appointed since 2018 were from the general category.

**Conclusion**

The verdict was constitutionally sound but institutionally incomplete, protecting independence while preserving opacity. A transparent, criteria-based process with judicial primacy intact would serve both independence and public accountability.

Critically examine the Supreme Court's judgement on National Judicial Appointments Commission Act, 2014 with reference to appointment of judges of higher judiciary in India.

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