A Middle Path for the Judiciary

(The article was originally published in Indian Express on March 29, 2025 as a part of Dr Madhav’s column titled ‘Ram Rajya’. Views expressed are personal.)

The unfortunate controversy surrounding the alleged recovery of burnt bundles of cash from the official residence of a sitting Delhi High Court judge revived the decade-old debate over the National Judicial Appointments Commission (NJAC). Jagdeep Dhankhar, the vice president and chairman of the Rajya Sabha, earlier this week described the controversy as an “extraordinarily painful scenario” and insisted that “things would have been different” had the NJAC been in place. This is not the first time Dhankhar — a distinguished constitutional lawyer — batted for the NJAC. In fact, in his maiden speech in the Rajya Sabha in December 2022, he vociferously argued that the Supreme Court scrapping the NJAC Act in 2015 was a “severe compromise of parliamentary sovereignty” and even alluded to it as crossing the “Lakshman Rekha”. In his impromptu comments in the Rajya Sabha earlier this week, he said that the NJAC Act concerned the “sovereignty of the Parliament, supremacy of the Parliament”, and asked “whether we are at all relevant”.

Dhankhar was right in reviving the debate not just because of the current controversy, but also because of the repeated stalemates between the judiciary and the executive over the appointment of judges. This moment also calls for revisiting the debates over the issue in the Constituent Assembly and the provisions in our Constitution in its 75th year, which was declared by Prime Minister Narendra Modi as the year of “Hamara Samvidhan, Hamara Swabhiman” (our Constitution, our pride).

Article 124 and Article 217 determine the procedure to be followed for the appointment of judges to the Supreme Court and high courts respectively. Both Articles empower the president to make such appointments “after consultation with such judges of the high courts and the Supreme Court as the President may deem necessary”, and also the Chief Justice of India. Hearing a related matter in 1981, the Supreme Court had held that “consultation” only meant the exchange of views, and not necessarily “concurrence”, thus leaving the final authority to the President in such matters. However, in a similar matter in 1993, the Supreme Court reversed the 1981 observation and insisted instead that the opinion of the CJI was “binding” on the President. A new system of a three-judge collegium was created to give binding recommendations to the President in matters of appointment and transfer of judges. It became a five-member collegium in 1998.

In the last three decades, the Supreme Court has zealously upheld the collegium system over the earlier practice of presidential prerogative. The Modi-led government, in its first year in office, decided to revoke it and introduced a Bill in Parliament in August 2014 seeking to establish the NJAC. The Bill — the 99th amendment to the Constitution — was passed by both houses in August 2014 and subsequently ratified by 16 state legislatures. It became an Act in April 2015 after President Pranab Mukherjee’s assent.

The NJAC was supposed to be a six-member body aimed at replacing the 1993 collegium system. Three out of the six members were supposed to come from the senior-most judges of the Supreme Court led by the CJI. Of the remaining three, one was to be the Union law minister while the other two were “eminent persons” from civil society nominated by a committee comprising the CJI, the PM and the Leader of the Opposition in Lok Sabha. In effect, the CJI would have had a considerable say in the appointment of the six members.

Yet, the Supreme Court took an adverse view of the Act and struck it down using the still-evolving doctrine of “basic structure”. In its order on October 16, 2015, a Constitution Bench of the Court headed by Chief Justice J S Khehar ruled by a 4:1 majority that the NJAC Act violated the basic structure of the Constitution since it compromised the primacy of the judiciary by including non-judicial members. It opined that the NJAC allowed the executive a “foot in the door” in judicial appointments, raising the spectre of political interference. Interestingly, the lone dissenting judge, Justice J Chelameswar argued the opposite, insisting that it was the collegium system that lacked transparency and accountability. He described the NJAC as “a check on unwholesome trade-offs within the collegium and incestuous accommodations between judicial and executive branches”.

As Parliament is once again seized of the matter, it may be time both the judiciary and the executive gave serious thought to the NJAC. After all, nobody can say that eminent justices like H R Khanna, V R Krishna Iyer or M N Venkatachaliah were political appointees just because they were appointed before the collegium system came into vogue. In the Constituent Assembly, two sets of suggestions were discussed: One, leaving the authority of judicial appointments to the president and the executive, and the other, to leave it to the wisdom of the judiciary. Ambedkar categorically said that allowing the judiciary to have the final say was a “dangerous proposition”. He argued that “those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgment. I personally feel no doubt that the chief justice is a very eminent person. But after all, the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day”.

Ambedkar’s appeal was for a “middle course”. The NJAC can be one.