27 March 2025 : Indian Express Editorial Analysis

1. Court must visit NJAC

(Source – Indian Express, Section – The Ideas Page – Page No. – 11)

 Article 124 and the Appointment of Supreme Court Judges

• Article 124 of the Indian Constitution establishes the Supreme Court and outlines the appointment process for its judges.
• It states that the President, acting on the advice of the Council of Ministers, shall appoint Supreme Court judges after consulting the Chief Justice of India (CJI).
• However, during the drafting of the Constitution, a proposal to replace “consultation” with “concurrence” was rejected by B.R. Ambedkar.
• He argued that giving the Chief Justice veto power would transfer authority from the President to the judiciary, which was deemed a dangerous proposition.

Judicial Appointments and the First Judges Case (1981)

• For the first two decades post-independence, the appointment process functioned smoothly, resulting in the selection of competent and honest judges.
• However, concerns about judicial independence led to the First Judges Case (S.P. Gupta case, 1981).
• In this case, it was argued that “consultation” in Article 124 should be interpreted as “concurrence,” meaning that the Chief Justice’s approval would be mandatory for judicial appointments.
• The Supreme Court rejected this argument, reinforcing the executive’s role in judicial selections.

The Evolution of the Collegium System

• Despite the ruling in the First Judges Case, the interpretation of Article 124 was revisited in the 1990s.
• In a dramatic shift, the Supreme Court reversed its earlier stance and redefined “consultation” as “concurrence,” thereby establishing the collegium system.
• This system, which was never originally envisioned in the Constitution, transferred the power of judicial appointments from the executive to the judiciary.
• The collegium comprises the Chief Justice and the four senior-most judges, effectively sidelining the government’s role in judicial selections.

The NJAC and Its Striking Down

• A broad political consensus led to the Constitution (Ninety-Ninth Amendment) Act in 2014, which created the National Judicial Appointments Commission (NJAC).
• The NJAC included six members: the Chief Justice of India, two senior-most judges, the Union Minister of Law and Justice, and two eminent persons.
• However, in 2015, the Supreme Court struck down the NJAC as unconstitutional, invoking the Basic Structure Doctrine.
• The Court ruled that the presence of the Law Minister and two eminent persons diluted judicial independence.
• This decision was controversial and questioned by many, as it nullified a reform that had been passed with near-unanimous support in Parliament and ratified by 16 state legislatures.

Criticism of the Collegium System

• The collegium system has faced significant criticism from both within and outside the judiciary.
• Justice Jasti Chelameswar, in his dissenting opinion in the NJAC case, pointed out multiple flaws in the collegium’s functioning, stating that judicial appointments were often marred by secrecy and internal lobbying.
• Former Supreme Court judge Justice Ruma Pal also criticized the collegium system, calling it “one of the best-kept secrets in the country” and highlighting its lack of transparency.
• Additionally, Justice Kurian Joseph, who initially supported striking down NJAC, later expressed regret over his decision, admitting that the collegium system had proven ineffective over the years.

The Missed Opportunity for Judicial Reform

• The NJAC amendment was a balanced effort to restore some level of government participation in judicial appointments while maintaining judicial independence.
• Notably, it did not revert to the original system where the executive had complete control but instead introduced a collective approach to decision-making.
• Despite this, the Supreme Court rejected it, preventing a significant judicial reform.
• Given the concerns raised by various judges over time, the NJAC case represents a lost opportunity for much-needed reforms in India’s judicial appointment system.

Conclusion

• Given the flaws in the collegium system and the evolving perspectives of even those who once supported it, there is a strong case for revisiting the NJAC judgment.
• Just as the S.P. Gupta ruling was reconsidered in the Second Judges Case, it would be in the public interest for a larger Supreme Court bench to re-examine the NJAC decision.
• Judicial independence must be safeguarded, but transparency, accountability, and efficiency in judicial appointments must also be ensured.
• A re-evaluation of the NJAC could pave the way for a more balanced and effective system of judicial appointments in India.

Check this out 26 March 2025 : Indian Express Editorial Analysis