ACADEMIC COMMENTARY

A Challenge to Judicial Independence in India: The

National Judicial Appointments Council (NJAC)
Thursday 23 July 2015 at 8:00 AM ET

edited by Elizabeth Dennis

JURIST Guest Columnist Manoj Mate of Whittier Law School discusses the National Judicial
Appointments Council...

Over the past months, the political whirlwinds surrounding efforts by Narendra
Modi's BJP government to change India's judicial appointments system have given
way to a storm of constitutional contestation. Since 1993, India's top judges,
including the chief justice and senior justices of the Supreme Court of India ("SCI"),
have had primacy and an effective nal say in appointments. However, in late

2014, the Modi government, in a direct challenge to judicial power and primacy, enacted the National
Judicial Appointments Act and the Constitutional (99th) Amendment Act [PDF] , establishing a new
National Judicial Appointments Commission ("NJAC"). Following ratication by state legislatures,
President Pranab Mukherjee gave assent to these acts, and in April, the government ocially notied
the 99th Constitutional (Amendment) Act, [PDF] and the NJAC Act, bringing the new laws into force.
The NJAC Act and Amendment Bill amends Article 124 of the Indian Constitution by adding Article 124A,
which provides for the creation of the NJAC in place of the current collegium system. The new NJAC
dramatically limits the primacy of the judiciary and increases the government's power in appointments.
The NJAC is to be comprised of the chief justice of India and two senior-most Supreme Court judges, the
union law minister and two "eminent people," one of whom would be drawn from the scheduled castes,
tribes, minorities and other backward classes or women. At present, the chief justice is H.L. Dattu, and
the two senior justices are Justice T.S. Thakur and Justice Anil Dave. Under this new system, the two
eminent persons would be selected from a panel consisting of the chief justice, the prime minister and
the leader of the opposition in the Lok Sabha. Signicantly each of the six members of the NJAC would
have a vote, and two members would be able to veto an appointment to the court. In addition, the NJAC
would have the power to promulgate new regulations governing criteria for selection and procedures for
appointment of Indian Supreme Court and high court judges.

Following the enactment of the NJAC, judicial appointments have reached a standstill. In a letter to Modi,
Chief Justice of India, H.L. Dattu stated that he would refuse to participate in the three-person
committee charged with selecting the two eminent persons to the NJAC until its constitutionality has
been decided by the Supreme Court. As of April 2015, there were 364 vacancies in high courts that are
currently on hold as a result of the constitutional impasse over the NJAC. The battle has now shifted to
the judiciary, and following the ling of a series of petitions challenging the constitutionality of the NJAC,
a supreme court panel referred the matter to a larger ve-judge constitutional bench which began
hearing oral arguments in April.
Since the 1980s, the court dramatically expanded its role in the governance of the polity and selectively
asserted itself in fundamental rights. As I have argued elsewhere, this selective assertiveness has
reected the judges' unique elite worldviews and conceptions of the rule of law and the broader ethos
of professional and intellectual elite opinion that frames and shapes judicial-decision making in India.
Faced with the power of a strong government following years of weak coalition governments, will the
court continue to assert itself in protecting its institutional structure and power or bow to the winds of
political pressure seeking to democratize a professionalized model of judicial appointments?
The Historical Context
Under the present "collegium" system, the Chief Justice of India (CJI) and senior justices had primacy in a
consultative appointment process with the government, a product of a series of judicial decisions in the
1990s. Prior to the 1970s, the court's appointments and transfers were a collaborative process in which
the prime minister and council of ministers would consult with the chief justice and other constitutional
functionaries. During the 1970s, following a series of decisions challenging the policies and power of
Indira Gandhi's government, the government politicized the appointment process by effectively packing
the court and attacking its power, culminating in the emergency rule period (1975-1977).
Articles 124, 217 and 222 of the Indian Constitution provide that the executive (the Prime Minister,
Council of Ministers, and President) must consult with justices from the Supreme Court and state high
courts, along with other constitutional functionaries at the state level, in judicial appointments and
transfers. In theFirst Judges' Case, a case involving challenges to judicial transfers by the Gandhi regime
in 1980, the Court interpreted the "consultation" requirement in articlesarticles 124, 217, and 222 of the
Indian Constitution to mean that the executive had primacy in judicial appointments and transfers
following consultation with the judiciary and other functionaries. However in the Second Judges' Case
(1993), the court reversed course and held that the "consultation" requirement in Article 222 of the
Indian Constitution meant that the executive needed the concurrence of the judiciary in appointment
decisions. In justifying its decision the Court suggested that judicial independence was a basic feature
and that allowing the executive to have primacy would threaten this independence and also held that
judges' were in the best position to determine the merits of appointments. The court established the

"collegium" system of appointments wherein the chief justice and senior justices would now have
primacy. In the Third Judges' Case (1998), the court expanded the collegium to include four senior
justices.
Litigation and Constitutional Arguments
In April, a three-judge bench of the SCI referred a series of petitions challenging the NJAC to a ve- judge
bench. Justice Anil Dave recused himself from the ve-judge bench because he had already been
appointed to the three-person committee charged with selecting eminent persons. In his place, Chief
Justice Dattu chose Justice J.S. Khehar to lead the bench. Signicantly the court rejected the
government's request that the matter be heard by an eleven-judge bench in order to review the court's
earlier judgments in the Second Judges Case and Third Judges' Cases, in holding that the
constitutionality of the NJAC under the basic structure doctrine needed to be evaluated independently of
these decisions.
The petitioners challenging the NJAC have effectively been consolidated around the lead petition of the
Supreme Court Advocates of Record Association (SCAORA). Petitioners have argued that the NJAC
violates the basic structure of the Indian Constitution by attacking judicial independence. The basic
structure doctrine was rst asserted by the Court in Kesavananda Bharati v. State of Kerala in 1973 and
later rearmed in Minerva Mills v. Union of India (1980). Under the basic structure doctrine, the court
has the power to invalidate constitutional amendments that violate the basic structure or basic features
of the Indian Constitution. Based on previous decisions, jurists have suggested that secularism,
democracy, the rule of law, federalism, equality and judicial independence are all basic features of the
Indian Constitution, though this is still contested terrain and not necessarily an exhaustive list of
features.
Arguing for the petitioners, senior Advocates, including Fali Nariman, Anil Divan, Rajeev Dhavan, Arvind
Datar and Prashant Bhushan argued that the NJAC violates judicial independence by creating a system in
which the chief justice would no longer have primacy in judicial appointments and in which the judiciary
would not have majority control over the NJAC in a system where the political inuence of the executive
and Parliament would be dominant. In addition petitioners also argued that the NJAC would override the
convention that Chief Justices are selected on the basis of seniority. Furthermore petitioners challenged
the new NJAC act on the grounds that it grants Parliament the power to change and alter judicial
selection criteria and procedures, which constitutes a violation of judicial independence, separation of
powers, and the rule of law. In his oral arguments, senior advocate Ram Jethmalani, rebutted the
government's arguments, observing the NJAC violated judicial independence by allowing the Union Law
Minister, a major litigant before the court, to play a role in appointments and also argued that the NJAC
constituted a clear attack on the separation of powers under Article 50 of the Constitution.

Advocates for the government and several states have argued that the NJAC would improve judicial
selection and the quality of the judiciary and that the NJAC does not violate the basic structure. In
defending the NJAC, Attorney General Mukul Rohatgi argued that expanding the appointment process to
include a more formal role for the law minister, along with two "eminent persons," would help lead to a
more diverse and representative judiciary that is more accountable to the people. The government has
also argued that a switch to the NJAC would improve the quality and merit of judicial appointments,
going so far as to impugn the merit of specic appointments under the collegium. In addition senior
advocate K.K. Venugopal, representing the state of Madhya Pradesh, argued that the NJAC did not
violate the basic structure, as Article 124 has drafted conferred primacy on the executive, not the
judiciary, in judicial appointments and that the Supreme Court had distorted and departed from the
original understanding of Article 124 the allocation of executive and judicial power in judicial
appointments4 in the Second Judges Case and Third Judges' Cases.
In recent hearings in July, the bench has expressed concerns that the NJAC in its present form violates
the basic structure doctrine by compromising judicial independence. The bench also has asked
petitioners to suggest potential modications to the NJAC, while acknowledging the need for reform of
the collegium system. The Court recently reserved judgment on the case on July 15th and is expected to
issue a decision within the next few weeks.
Undoubtedly the court's decision will have profound implications for the future of the judiciary. While
the NJAC could enhance the accountability and transparency of the appointment process, a decision
upholding the NJAC would weaken judicial independence. Moreover upholding the NJAC could temper
the recent assertiveness of the Court, by allowing the government to appoint and transfer judges on the
basis of their policy ideology, potentially diminishing the salutary role of the Court as a check on
corruption and malgovernance in Indian politics. Based on the Court's earlier precedents, oral
arguments and the bench's own statements, it is likely that the court will invalidate the NJAC in its
current form. While invalidating the NJAC under the basic structure doctrine would be extraordinary
from a comparative perspective, such a ruling would be consistent with the Court's record of
assertiveness in the defense of judicial integrity and independence.

Manoj Mate is Associate Professor of Law at Whittier Law School, and Director of the Center for
International and Comparative Law at Whittier and Associate Professor (by courtesy) of Political Science
at Whittier College.

Suggested citation: Manoj Mate, A Challenge to Judicial Independence in India: The National Judicial

Appointments Council (NJAC) , JURIST - Academic Commentary, July 23, 2015,

http://jurist.org/forum/2015/07/manoj-mate-judicial-independence.php

This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at
commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily re ect the
views of JURIST's editors, staff, donors or the University of Pittsburgh.

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