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For any democracy to flourish, there needs to be the separation of powers among the arms of the government, namely, the Legislature, Judiciary, and Executive. The Indian Constitution came into force in 1950 which established the Supreme Court. Initially, the appointments of judges were done in harmony. However, in the last five decades, there has been a significant debate concerning the procedure of appointing judges to higher judicial institutions. Several supreme court benches have sat to decipher the actual intentions of the constitution-makers and provisions of the constitution which deals with the appointments in the higher judiciary followed by various attempts by the parliament to have a say in the appointing process.

Too often we overlook the importance of the faith of citizens on the Judiciary. Throughout the brief history of our democracy, it had been the judiciary, on various occasions to stand up and keep the legislature’s powers in check. From time to time whenever the people have been let down by the parliament it has been the Supreme Court to entertain and address the concerns of the people. It is therefore for these reasons that it is imperative to not let the faith of people in the judiciary dilute in any way.


Till 1973, the President of India, under Article 124 of the Constitution, appointed the Chief Justice of India purely on a seniority basis. However, in 1973, Justice AN Ray was superseded and designated to the post of Chief Justice of India. This act of the executive attracted criticism from all corners of the country and marked the beginning of questions being raised on the appointments in the judicial arm of the government. The process of unfair and biased judicial appointments spread to the various high courts. 


In 1982, the Supreme Court in S.P. Gupta v. President of India sat to interpret the meaning of the word ‘Consultation’ as used in article 124. Article 124 talks about ‘the appointments of the Judges of the Supreme Court of India by the President of India on consultation with the Chief Justice of India’. The term “consultation” is a neutral term that the constitution’s framers hoped would allow the judiciary and executive branches to reach an agreement on the merits of each appointment. The court was of the view that the word ‘consultation’ is not ‘concurrence’, hence the President could appoint an appointment to the Supreme Court without being in concurrence with the Chief Justice of India. Thus, this decision gave the executive the upper hand in making the appointments to the judiciary. 

Again in 1994 a nine-judge bench in Supreme Court Advocates-on-record Association v. Union of India of the Supreme Court set out to reconsider its earlier judgement. The court noted that neither executive nor the judiciary should have an upper arm in the appointment process. It emphasized that both should act in unison, as is mandated by the Constitution. It also laid the foundation of the ‘collegium system’ of designation of the judges in the higher judiciary. According to it, ‘for the appointment, the Chief Justice of India has to consult with two of the Supreme Court’s most senior judges. A similar procedure was laid down for the high courts. Subsequently in 1999, in a reference sought by the then President of India, RK Narayan, the Apex Court in Third Judges Case laid down that ‘for making judicial nominations, the Chief Justice of India shall contact four of the Supreme Court’s most senior justices’. 


The NDA Government in the year 2000 constituted the Venkatachaliah Commission to examine the constitution’s operation. This is where the bone of contention arose. It changed the public discourse on judicial appointments by recommending a judicial commission that would be responsible for designating judges to the higher judiciary. The commission’s members would be the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister for Law and Justice, and one prominent person selected by the President following consultation with the Chief Justice of India. The same Government tried to implement the recommendation in 2003 through The Constitution (Ninety-Eighth Amendment) Bill, 2003 but failed to do so. Finally, in 2014, the parliament passed The Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointment Commission (NJAC) Act. In 2015, the Supreme Court of India heard petitions challenging the amendment and the NJAC Act.


The Apex court of India has a history of judicial activism, with the court frequently intervening not just to strike down unconstitutional laws, but also in law-making, which many argue should be the exclusive domain of the Parliament. The whole case was based on the validity of the amendment to Article 124A of the constitution and the NJAC act. ‘The Chief Justice of India as its ex-officio Chairman, two senior-most Supreme Court judges, the Union Minister of Law and Justice, and two renowned nominated members’ were to make up the NJAC. This meant that both the judiciary and executive had equal representation in the NJAC which in turn meant that both had equal powers in judicial appointments. 

The petitioners argued that the Constitution has empowered the judiciary for making judicial appointments and this responsibility cannot be shared with the executive. They contended that by bringing the executive on equal footing with the judiciary, the 99th amendment and the NJAC Act seriously undermine the ‘Independence of judiciary’. Concerning the need for more openness and accountability, the Attorney General, speaking for the Respondents, stated that civil society has a right to know the process of judicial appointments and that it should be made transparent to keep the faith of people in the judiciary intact.

Finally, in 2015 in Supreme Court Advocates-on-record Association v. Union of India, the constitutional bench comprising of Jagdish Singh Khehar, Kurian Joseph, Adarsh Kumar Goel, Madan B. Lokur, and J. Chelameswar (by a majority of 4:1) struck down ninety-ninth amendment act and the NJAC act of 2014 as being against the ethos of the constitution. It was decided that the judiciary has supremacy in the nomination process under the Constitution. Furthermore, judicial supremacy was deemed to be a fundamental aspect of the Constitution that could not be removed at the behest of Parliament. The Supreme Court is adamant about not giving the executive the power to appoint judges.


In a democracy, people’s trust in the judiciary is paramount and that can only be maintained if the people in charge of the judiciary are appointed fairly without ulterior motives. The court was correct in striking down the 99th Constitutional Amendment and the NJAC Act because they would have gravely harmed the judiciary’s independence. The NJAC commission was to have equal representation from both the arms of government, which was against the independence of the judiciary. If at all it would have been implemented, the executive would have been on an equal footing in making appointments to the judiciary thus seriously undermining the faith in the judiciary and its appointments.

The judiciary should too not be involved in the law-making process. The elected representatives make laws and are responsible for the same to the people of the county but the judicial officers are nominated and hence are not answerable to anyone. However, as rightly noted by the court, the ‘collegium system’ of appointing the judges is not perfect either. It has its cons and needs to be dealt with. One major problem is the transparency in the collegium system. The Parliament was right in bringing the NJAC Act but it was misguided in its composition. Although it was highly needed the provisions were nowhere to what was expected by legal scholars and civil societies. The parliament still needs to come up with regulations but without any exterior motives. The country still needs a law governing the judicial appointments which are free from opaqueness and malpractices which distorts the faith of the citizens in the judiciary of India. 

Author(s) Name: Anmol Yadav (Banaras Hindu University, Varanasi)