On 2nd December 2022, an unexpected bedlam was caused between the Executive
and the Judiciary regarding the turning down of the Constitutional Amendment by
the Supreme Court in the Fourth Judges Case of 2015. The issue arose when
Vice-President Jagdeep Dhankar made his remarks about the warding off of the
99th Constitution Amendment Act by the Supreme Court, in the presence of the
Chief Justice of India D.Y. Chandrachud.
Vice-President Dhankar questioned the judiciary's power of completely casting
off the provision which was passed unanimously by Lok Sabha, with no dissension,
as well as by Rajya Sabha, with just one dissension of Mr. Ram Jethmalani.
Jagdeep Dhankar raised the question of the authority of the Judiciary to
completely ignore the "will of the people" as reflected by both the houses of
The Judiciary has always been relying upon the basic structure of the Indian
Constitution while defending the independence of the Judiciary. On the other
hand, the Executive has once again questioned the Judiciary regarding the
transparency and relevancy of the existing Collegium System. This has ignited
the dispute between the Executive and the Judiciary.
A sudden mention of a seven-year-old verdict by the Vice President raises the
signal of some significant developments in the field of Judiciary in the coming
times. For a better insight into this issue and to better understand these
recent developments, one needs to ponder upon the facts chronicling the history
of the National Judicial Appointment Commission (NJAC) and the Collegium System.
The Birth Of The Collegium System
Earlier, the Supreme Court and High Courts judges were appointed by the
provisions laid under Article 124 and Article 217 of the Constitution of India.
Herein, the President of India appointed the judges of the Supreme Court and the
High Courts after the consultation of the judges of the Supreme Court and the
High Courts. The Executive, therefore, had a major role to play in the
appointment of the judges, whereas, the Judiciary was looked upon as a mere
"consulting" body, whose consultation was not compulsory to abide by.
First Judges Case
In the First Judges Case of 1982, a quintessential question about the
appointment of judges was raised in the Supreme Court. The substantial question
of law was whether it was the Executive or the Judiciary who possess the
authority over the appointment and transfer of judges. The seven judges'
constitution bench ruled that the Executive has the upper hand in the
appointment of the judges.
They emphasized that "consultation" of the Judiciary should not be seen as a
"concurrence". However, the bench unanimously agreed that the Executive should
pay the rightful and effective heed to the "consultation" made by the Judiciary.
In the majority decision of 5:2 of the seven judges' bench, Justice P.N.
Bhagwati recommended a collegium to be formed for the recommendation of judges,
whereas, Justice R.S. Pathak and Justice V.D. Tulzapurkar collectively agreed
that the advice of the Chief Justice of India and the Judiciary should be given
All in all, highlighting Article 124 and Article 217 of the Indian constitution,
the Supreme Court in the case of S.P. Gupta v. Union of India, ruled in the
favour of the respondents and opined on the Executive having the ultimate and
final say in the appointment of judges.
Second Judges Case
The Second Judges Case of 1993 reversed the judgment passed in the First Judges
Case of 1982. The Supreme Court, in this landmark case of Supreme Court
Advocates-on-Record Association v. Union of India, introduced the Collegium
The nine judges' bench took into consideration the similar question of whether
the Executive or the Judiciary would have the final say in the procedure of
appointment and transfer of judges and in this historic judgment, the
constitution bench reversed the earlier judgment made by the Supreme Court.
The bench ruled that the Judiciary should be independent of the influence of the
Executive and gave the decision accentuating that the Chief Justice of India
should have the primary role in the process of appointment of judges.
The bench said that the term "consultation" should be understood as
"concurrence". As a result of this judgment, the Collegium was formed which then
comprised three members, namely, the Chief Justice of India and two senior-most
judges of the Supreme Court. This judgement put an end to the Executive's
interruption and thus, made the Judiciary independent by marking the beginning
of the Collegium System which is still prevalent today.
Third Judges Case
The Third Judges Case, also known as the Presidential Reference Case, of 1998,
reinstated the control of the Judiciary over the matter of appointment of judges
and also expanded the existing constitution of the Collegium System. Herein, the
then President of India, K.R. Narayanan made certain references to the Supreme
Court abiding by Article 143 of the Indian Constitution.
The President questioned the Supreme Court if the "consultation" only involved
the individual views of the Chief Justice of India and not the plurality of
judges in the Supreme Court. This led to an alteration in the earlier
composition of the Collegium which was increased from three members to five
members, comprising the Chief Justice of India and four senior-most judges of
the Supreme Court.
However, the Collegium appointing the judges to the High Courts still had the
same composition of three judges. The expansion of the Collegium was done such
that it shows the collective decision of the senior-most judges in the procedure
of appointment and transfer of judges, rather than signifying individual opinion
Inception Of The National Judicial Appointments Commission (NJAC)
After the "three judges case" and the long going tussle between the Executive
and the Judiciary, the Supreme Court created the Collegium System for the
appointment and transfer of judges. The Supreme Court in the Second Judges Case,
as well as in the Third Judges Case, made it lucid that the Executive cannot
have an equal say over an issue that falls in the domain of a different arm of
the government, i.e. the Judiciary.
The creation of the Collegium was a salient move in making the Judiciary
independent. Thereafter, in August 2014, the Parliament passed the 99th
Constitution Amendment Act, 2014 along with the National Judicial Appointments
Commission (NJAC) Act, 2014.
These two acts dealt with amending clause 2 of Article 124 and the formation of
the National Judicial Appointments Commission, simultaneously. Both these acts
were passed unanimously by Lok Sabha with historically zero abstentions, whereas
in Rajya Sabha also, it was passed with a reigning majority with just one
dissension. Never in this country, was an act passed with a such high majority
The reforms were brought into action because the government believed that the
process of judges appointing judges was not maintainable and trustworthy and,
therefore, needs to have transparency. The NJAC was constituted for aiding in
the process of recommendation of judges and to completely ward off the cloudy
questionable collegium system.
The National Judicial Appointments Commission, which replaced the Collegium
System in 2014, comprises six members. Those were:
- The Chief Justice of India, as the ex-officio chairman of the NJAC.
- The Union Law Minister
- Two senior-most judges of the Supreme Court, and
- Two eminent persons provided that one of the eminent persons must belong
to the Scheduled Castes, Scheduled Tribes, Other Backward Class, Minorities
or Women, which would be selected by a committee composed of the Prime
Minister, the Leader of the opposition and the Chief Justice of India
Out of the six members, if any two disapproved of the proposed name, then the
NJAC would not recommend the such name to the President, for appointment as a
judge. The composition of the members of the NJAC was such that it put forth the
opinions of not only the legislative and the judiciary but also the civil
society. The diversified composition of the NJAC reflected the motive of making
the system of appointment of judges more transparent and open to the general
The National Judicial Appointments Commission was the principal body for making
recommendations regarding the transfer and appointment of judges in the High
Courts and the Supreme Court.
Unconstitutionality Of The NJAC & Re-introduction Of The Collegium System
The five judges' constitution bench of Justice Madan B. Lokur, Justice J.S.
Khekar, Justice Adarsh Kumar Goel, Justice Kulian Joseph, and Justice
Chelameshwar, struck down the National Judicial Appointments Commission in the
landmark case of Supreme Court Advocates-on-Record v. Union of India
(also referred to as the Fourth Judges Case) of 2015. The Collegium System of
appointment of judges was brought into action once again, but the judges, in
their judgement, mentioned that the system of "judges appointing judges" is not
accurate and reliable and therefore, needs to be reformed.
The National Judicial Appointments Commission was constituted to make the
process of appointment and transfer of judges more refined and transparent. It
was made to overcome the shortcomings of the Collegium System.
But in the judgement of this case, the individual reasoning of four out of five
judges of the constitutional bench stipulated that the arm of the judiciary
should be free from the influences and decisions of the executive as it violates
the basic structure of the Constitution. Justice Chelameshwar, however, quoted
"The arm of the Judiciary should not be the only constitutional organ capable of
protecting people's liberties".
Thus, in the Fourth Judges Case of 2015, the five judges' constitutional bench
with a majority of 4:1, declared the National Judicial Appointments Commission (NJAC)
Act, 2014 and alterations made to Article 124 through the 99th Constitution
Amendment Act, unconstitutional and void and re-introduced the old Collegium
System for appointment and transfer of the judges of the High Courts and the
A heated debate was caused when Vice-President Jagdeep Dhankar recalled the
seven-year-old verdict of the Supreme Court Advocates-on-Record v. Union of
India, also known as the Fourth Judges Case of 2015, conveying his discontent
over the complete nullification of the acts passed unanimously by both the
houses of the Parliament which reflected the "will of the people"
Vice-President Dhankar made these critical statements in the presence of the
Chief Justice of India D.Y. Chandrachud and other senior judges of the Supreme
Court. This brought the issue of reliability of the current judicial appointment
procedure and the NJAC once again to the forefront and has sparked the fumes
between the Executive and the Judiciary.
Arguments Of The Judiciary
The Judiciary firmly stands on its opinion stating that as per the judicially
evolved doctrine of the basic structure of the Indian Constitution, judicial
independence cannot be chased away. This is because the "basic structure of the
Constitution" safeguards the separation of powers and allows the
non-interference and complete independence of the different organs of the
government which makes the Judiciary independent of the Executive's influence.
The Supreme Court readily condemned the Vice President's remarks about the
non-reliability of the Collegium System and also cautioned the government
against the public functionaries for speaking against the Collegium System in
the public. Moreover, the judiciary took a defiant stance against the numerous
public speeches made by the Union Law Minister Kiren Rijiju in which he had
openly criticized the Collegium System.
The Supreme Court made it clear to the Executive that till the time the
government formulates any other law to appoint and transfer the judges of the
High Courts and the Supreme Court, the Collegium System will act as the law of
Counterattacking the arguments put forth by Vice President Jagdeep Dhankar in
the Rajya Sabha, the Supreme Court highlighted and cautioned the government to
not delay the appointment of the judges. The Supreme Court transfers the blame
for increasing pending cases in the courts and the non-filling of the vacant
seats, especially in the High Courts, to the government.
As the watchdog of the Judiciary, the Supreme Court complained that the
Government has not been clearing the names of the judges even when it was
re-iterated by the Collegium. This places the burden of an increasing number of
cases on the Judiciary which ultimately results in the pendency of such cases
and causes delays in the delivery of justice.
Therefore, opposing the arguments about the non-reliability of the Collegium
System, the Supreme Court stands strong on its decision not to allow the
Executive to interfere in the process of appointment of judges as this will
undermine the basic structure of the Constitution.
According to the Supreme Court, the procedure followed by the Collegium for the
appointment of judges is an appropriate one and the turbulences caused in the
process of delivery of justice are due to the delays caused by the government's
Furthermore, the Judiciary adds that the government's act of not confirming the
list of recommended judges for the appointment is discouraging good lawyers from
joining the bench due to which the High Courts and the Supreme Court are finding
it extremely difficult to find suitable candidates for filling up the vacant
Arguments Of The Executive
In this heated discourse, the Executive said that ever since its formation, the
Collegium System has faced constant criticisms against its functioning. The
former Supreme Court judge Justice A.K. Sikri brought forth the fact that India
is the only country where judges appoint judges and insist on reconsidering the
Collegium System of the appointment of judges. The Union Law Minister Kiren
Rijiju in one of his speeches said that the Collegium System limits talent
because only those judges are appointed to the bench whom the sitting judges
already know which leaves other capable candidates hopeless.
Recently, Vice President Jagdeep Dhankar has also criticized the Supreme Court's
decision in the case of Supreme Court Advocates-on-Record v. Union of India
(also referred to as the Fourth Judges Case) of 2015. In one of his public
speeches, Vice President said that by quashing National Judicial Appointments
Commission, the Supreme Court had disregarded the mandate of the people.
The Vice President, then reiterated his remarks in the Rajya Sabha on December
7, 2022, wherein relating to the 99th Constitution Amendment Act and the
National Judicial Appointments Commission Act, he accentuated that rarely in the
Parliamentary Democracy there had been such massive support to Constitutional
Legislation as this one.
He said that this historic Parliamentary mandate was undone by the Supreme
Court, finding the same as not aligning with the judicially evolved doctrine of
the basic structure of the Constitution. He also said that the Supreme Court's
act of turning down the unanimous and duly legitimized constitutional
prescription finds no parallel in democratic history. Speaking at the Upper
House, Vice President Dhankar stated this as a "glaring instance of severe
compromise of parliamentary sovereignty and disregard of the mandate of the
people of which this house (Rajya Sabha) and Lok Sabha are the custodians".
The government, while answering to the arguments of vacancy in the court, said
that it must not be blamed for vacancies in the High Courts and the Supreme
Court because to appoint worthy and qualified judges to the Supreme Court and
the High Courts, the government needs time to conduct a background check and
sometimes negative practices arise out of the same.
The government also pointed out that many High Courts failed to recommend names
to the government for filling up the vacant seats. At present, there is 56%
vacancy at the High Courts, wherein the High Court of Chattisgarh, Jharkhand,
Meghalaya, Sikkim, and Tripura have not recommended names for existing vacancies
for 5 years or more.
The speech made by Vice President Jagdeep Dhankar, in the presence of the Chief
Justice of India and several other senior Supreme Court judges, has once again
raised the long-forgotten topic of the National Judicial Appointments Commission
and has questioned the relevancy of the Collegium System.
The concerned issue in this article highlights the sudden revoking of a
seven-year-old verdict by the Vice President, which gives the signal of an
attempt by the Executive for a judicial reformation. Recalling the judgement of
the Fourth Judges Case, the Vice President has shown his discontent and said
that never in the Parliamentary Democracy, a unanimous act passed by both houses
of the Parliament, was judicially undone. He said that such an act of the
Judiciary shows its disregard towards the mandate of the people, of which the
Lok Sabha and the Rajya Sabha are the custodians.
On the other hand, the article also encapsulates the Judiciary bulwarking its
stance against the arguments of the Executive by relying upon the doctrine of
the basic structure of the Constitution. The Judiciary has instated in many of
its judgement wherein it had refrained from interfering in the activities of the
Executive, as such an activity would not align with the basic structure of the
Respecting and relying upon this judicially evolved basic structure, the
Judiciary has earlier termed the concept of the NJAC as unconstitutional and
void and it still believes that the arm of the Judiciary should be free from the
influence of the Executive.
All in all, this article contains a lucid and thorough analysis of every
important past event related to the NJAC, which also encompasses the role played
by the "Four judges case" as well as the 99th Constitution Amendment Act, which
may hopefully provide the readers with clarity and guide them into developing a
discretion over this controversial topic.
- Neeraj Anand and
- Aditya Arun