OPINION | Supreme Court to reconsider plea for reviving NJAC system

The top cout bench says it was necessary, in the larger public interest, to examine how private universities were created.

On November 26, the Supreme Court announced it would consider a plea to revive the National Judicial Appointments Commission (NJAC). Chief Justice of India (CJI) Surya Kant made this remark following an oral request by advocate Mathews Nedumpara during a hearing. This development is significant for two reasons. First, the Supreme Court had struck down the NJAC in 2015, which sought to overhaul the process of judicial appointments. Second, the statement came from Justice Surya Kant, a known defender of the Collegium system. Earlier in June, he had described the system as, “despite its imperfections, a crucial institutional safeguard preserving the judiciary’s autonomy.”

The NJAC and Its Backlash

The dissenting opinion of Justice J. Chelameswar became a rallying point in the wider debate over the flaws of the Collegium system.

To address long-standing concerns about the functioning of the Collegium, the incumbent government in 2014 enacted the Ninety-Ninth Constitutional Amendment to establish the National Judicial Appointments Commission (NJAC). The proposed NJAC, which included representation from outside the judiciary, was intended to oversee the appointment of judges to the Supreme Court and the High Courts.

However, the constitutional validity of the act was challenged in the Supreme Court and the Supreme Court in October 2015 struck down the NJAC Act.

The judgment led to the continuation of the Collegium system, established through the Second and Third Judges Cases (1993 and 1998), which vested appointment powers in a panel of senior judges rather than the executive.

Collegium System: Origins and Criticism

The Collegium system emerged from the Second Judges Case, which shifted the appointment of judges from the President, with a consultative process involving the Chief Justice and senior judges, to a system where the CJI and the four senior-most judges of the Supreme Court are solely responsible for judicial appointments. This system has been criticised for lacking transparency, with many alleging nepotism and insufficient accountability.

Critics argue that the Collegium system creates an opaque and closed decision-making process. Senior jurists like Fali S. Nariman have questioned the concentration of power in a small group of senior judges, pointing out that the first five judges are not necessarily more competent than other members of the judiciary. This exclusivity, Nariman suggests, undermines the potential for a more inclusive and transparent process.

Calls for Reform

Despite defending the Collegium system, Justice Surya Kant has acknowledged its imperfections. The opaque nature of the system and allegations of favoritism have led to growing calls for reform. The issue resurfaced recently when Justice B.V. Nagarathna’s dissent on the elevation of Justice V.M. Pancholi was made public, reigniting concerns about transparency and fairness in judicial appointments.

The lack of clarity in the appointment process has been a longstanding issue. In 2011, former Supreme Court judge Ruma Pal noted that “judicial independence cannot exist without accountability.” She emphasised the need for a transparent and accountable system to prevent the possibility of biased appointments, and the system's secrecy has been one of its major flaws. Justice Jasti Chelameswar, in his dissent against the NJAC, further emphasised the importance of transparency in judicial governance, especially in the appointments process.

Judicial Independence vs. Executive Control

The core debate over judicial appointments in India revolves around the balance between safeguarding judicial independence and preventing undue executive influence. Critics of the Collegium system argue that the concentration of power in the hands of a few judges undermines the credibility and transparency of the appointments process. On the other hand, any system that gives the executive more power over judicial appointments raises concerns about compromising the judiciary’s independence.

Former Supreme Court Judge Justice Madan Lokur has made the point that the executive still plays a role in judicial appointments since the President formally makes the appointment. He clarifies that the recommendations of the Collegium are not always accepted by the government, but this technical distinction often does little to counter the perception that the executive is effectively sidelined by the Collegium’s dominance.

The Way Forward

While the Collegium system has faced significant criticism for its lack of transparency, inclusivity, and its potential for nepotism, the challenge lies in reforming the system without compromising judicial independence. Any new mechanism, such as the revived NJAC, must be carefully examined to ensure it addresses the shortcomings of the Collegium without creating new risks of executive overreach.

Ultimately, the purpose of reform should not be to exacerbate the power struggle between the executive and the judiciary but to create a transparent and accountable system for judicial appointments. This would ensure that the judiciary remains independent while upholding the principles of democracy, transparency, and accountability.

(Views are personal, and do not represent the stand of this publication.)