Appointing judges II: the NJAC, the Fourth Judges case and collegium reform

Detail

1. Background: why Parliament wanted a commission

• The collegium is a group of the senior-most judges that picks judges. For the Supreme Court it is the CJI and the four senior-most judges. It was created by the Court itself in the Second Judges case (1993) and refined in the Third Judges case (1998). The Constitution never uses the word "collegium".
• Critics called it a "self-appointing body": judges choosing judges, behind closed doors, with no written criteria and no reasons given.
• Parliament's answer (2014) was a constitutional body that mixed judges, the executive and outsiders. That body was the National Judicial Appointments Commission (NJAC).

2. The NJAC experiment (2014–15)

Two laws, passed together

• Constitution (Ninety-ninth Amendment) Act, 2014: received the President's assent on 31 December 2014 [2].
• National Judicial Appointments Commission Act, 2014 (No. 40 of 2014): also received assent on 31 December 2014 [3].
• Both came into force on 13 April 2015 [4][5].
• The amendment changed the Union judiciary (Chapter IV of Part V). So under the Article 368(2) proviso it needed a special majority in each House (a majority of the total membership, plus two-thirds of members present and voting) and ratification by at least half the state legislatures.

What the 99th Amendment changed [2]

Article	Before	After the 99th Amendment
124(2) – SC judges	President appoints "after consultation" with judges	President appoints "on the recommendation of the NJAC". The first proviso (consulting the CJI) was omitted
124A (new)	—	Created the NJAC and set out its six members
124B (new)	—	NJAC duties: recommend the CJI, SC judges, HC Chief Justices and HC judges; recommend HC transfers; make sure nominees have "ability and integrity"
124C (new)	—	Parliament may make a law on the appointment procedure. The NJAC may set out by regulations how it selects people
127, 128	CJI requests ad hoc or retired judges	NJAC does this, on a reference from the CJI
217(1) – HC judges	Consultation with the CJI, Governor and HC Chief Justice	On the NJAC's recommendation
222(1) – HC transfers	After consulting the CJI	On the NJAC's recommendation
224, 224A	President or HC Chief Justice acts alone	Acts in consultation with, or through, the NJAC
231(2)(a)	Common HC: consultation clause	Omitted

Composition (Article 124A) [2]

• Chairperson: the CJI (ex officio, meaning the person sits because of the post they hold).
• Two members: the next two senior-most Supreme Court judges (ex officio).
• One member: the Union Minister of Law and Justice (ex officio).
• Two "eminent persons":
• They were nominated by a committee of the Prime Minister, the CJI and the Leader of Opposition in the Lok Sabha. If there was no recognised Leader of Opposition, the leader of the single largest opposition party sat instead.
• At least one had to come from the SCs, STs, OBCs, minorities or women.

• Term of three years, with no renomination.

• Article 124A(2) said no NJAC decision would be invalid just because a seat was vacant.

How the NJAC Act worked [3]

• Vacancy reference (s. 4): the Centre had to refer a vacancy to the NJAC six months before a judge retired. After a death or resignation, it had 30 days.
• Choosing the CJI (s. 5(1)): the NJAC recommends the senior-most SC judge "if he is considered fit". A member whose own name is under discussion stays out of the meeting.
• SC judges (s. 5(2)): chosen on "ability, merit and any other criteria of suitability" set by regulations.
• The veto: no recommendation could go ahead "if any two members … do not agree". This rule covered both SC and HC appointments (ss. 5 and 6(6)).
• HC judges (s. 6):
• The HC Chief Justice nominates names after consulting the two senior-most HC judges and eminent advocates.

• The NJAC must also take the written views of the Governor and the Chief Minister.

• President's role (s. 7): the President may send a name back once for reconsideration. If the NJAC repeats it, the President must appoint.

• Convenor (s. 8(3)): the Secretary, Department of Justice, a government officer.

3. The Fourth Judges case — Supreme Court Advocates-on-Record Association v. Union of India (16 October 2015)

The verdict

• A five-judge Constitution Bench ruled 4:1. Justice J. Chelameswar dissented.
• The Court declared both the 99th Amendment and the NJAC Act unconstitutional and void [6].
• The collegium system as it stood before the amendment was declared operative again [6].

Why the majority struck it down

• Chain of reasoning:
• Independence of the judiciary is part of the basic structure (core features that even a constitutional amendment cannot destroy).
• Primacy of the judiciary in appointments (the judges' view should prevail) is part of that independence.

• The NJAC gave judges only three of six votes. So judges could not get any name through on their own.

• The Law Minister's seat: it brought the executive into appointments. The government is the biggest litigant in courts, so this was a conflict of interest.

• The eminent persons: no criteria said who counts as "eminent". Any two of them could together veto the CJI and both senior judges.
• The dissent (Chelameswar J.): the collegium is opaque. Primacy of judges is not the only way to keep courts independent. Parliament's change should have been allowed to stand.
• (Basic-structure analysis in detail: see amendment-basic-structure.)

The follow-up: the December 2015 order

• The Court accepted that the collegium has flaws and asked for public suggestions to improve it.
• It told the government to prepare a revised Memorandum of Procedure with the CJI. The four themes were eligibility criteria, transparency, a secretariat and a complaints mechanism.

4. Memorandum of Procedure (MoP)

• Definition: the Memorandum of Procedure is the agreed rulebook between the government and the judiciary for appointments. It covers who starts a proposal, the order of steps, and which agencies give inputs.
• The 1999 MoP (one for the SC and one for the HCs) still governs.

• HC appointment steps under the current MoP: 1. The HC Chief Justice, with the two senior-most HC judges, recommends names at least six months before a vacancy [7]. 2. The State Government gives its views. The Centre adds Intelligence Bureau (IB) inputs on suitability and integrity [7][9]. 3. The Law Ministry sends the file to the SC collegium (the CJI and the two senior-most judges for HC matters). The collegium also consults judges who know that HC [9]. 4. The collegium recommends. The government may return the name once with its objections. 5. If the collegium reiterates the name, the appointment "has to be made" [9].

• The Supreme Court in Lok Prahari v. Union of India (20 April 2021) said two things [9]:

• Normally, names should reach the SC collegium within four months of the HC collegium's recommendation.

• Vacancies had "hovered around 40%".

• The revised draft MoP:

• The government sent a draft in 2016. The CJI sent the collegium's inputs by letter dated 13 March 2017 [6].
• It was still "under finalisation" in the government's 2022 reply to Parliament [6].
• PRS notes that the "lack of consensus … on finalisation of the MoP" has delayed appointments [10].
• Main sticking points:
  • a government ground to reject names on "national security"
  • a permanent secretariat to screen candidates
  • written eligibility criteria
  • a complaints mechanism

5. Friction points between the government and the collegium

• Sitting on names: the government delays files, even names the collegium has reiterated, although reiterated names are binding.
• Segregation: the government picks some names from a collegium list and holds back others. This disturbs seniority, i.e. who joins first and so who can later become Chief Justice.
• Delayed transfers: HC judge transfers recommended under Article 222 are held up.
• Timelines: in PLR Projects (April 2021) the Court set time limits for IB reports, for the Centre to process files and for appointing reiterated names. On the same day (20 April 2021), Lok Prahari also allowed ad hoc judges under Article 224A to clear backlogs [9].
• Public attacks (2022–23): the Union Law Minister and the Vice-President publicly criticised the NJAC verdict. They argued that it ignored a unanimous vote of Parliament.

6. Reform agenda and diversity

Transparency steps so far

• Since October 2017, the collegium publishes its resolutions on the Supreme Court website.
• In January 2023, while reiterating some names, it published the IB and R&AW (Research and Analysis Wing, India's foreign intelligence agency) objections and its own reply.
• CPIO, Supreme Court v. Subhash Chandra Agarwal (2019): the CJI's office is a "public authority" under the RTI Act. Collegium information can be disclosed case by case, after weighing privacy and judicial independence. The names of judges chosen may be disclosed, but full reasons need not be.

Diversity data

• Justice M. Fathima Beevi became the first woman Supreme Court judge in 1989.
• Articles 124, 217 and 224 provide no reservation in the higher judiciary. So caste-wise data on sitting judges is not kept centrally [7][8].
• Since 2018, people recommended as HC judges must state their social background on a form prepared with the Supreme Court [7][8].
• HC appointments, 2018 to 28 November 2025 (841 judges) [7]:

Group	Judges	Share
SC	32	≈3.8%
ST	17	≈2.0%
OBC	103	≈12.2%
Minorities	46	≈5.5%
Women	129	≈15.3%

• From May 2014 to 27 November 2025, 1,156 judges were appointed to the High Courts [7].
• The government says it asks HC Chief Justices to give "due consideration" to SC, ST, OBC, minority and women candidates. It also says that only names cleared by the SC collegium get appointed [7][8].

Proposals on the table

• NCRWC (2002): the National Commission to Review the Working of the Constitution proposed a National Judicial Commission. It would have the CJI, the two senior-most SC judges, the Law Minister and one eminent person, giving a judicial majority.
• Written criteria for merit, seniority and diversity, published in advance.
• A permanent secretariat to keep databases on candidates.
• Recorded reasons, disclosed within the limits set in Subhash Chandra Agarwal (2019).
• Core tension: independence (keeping politicians out) against transparency and accountability (judges answer to no one for whom they choose).

Prelims Hooks

• 99th Amendment Act, 2014 inserted Arts. 124A, 124B and 124C. It amended Arts. 124, 127, 128, 217, 222, 224, 224A and omitted 231(2)(a).
• NJAC eminent persons: nominated by the PM, CJI and Leader of Opposition (Lok Sabha). They served three years and could not be renominated. One had to be from the SC/ST/OBC/minorities/women.
• NJAC veto: any two members could block a name. This included the two eminent persons acting together.
• NJAC Act s. 7: the President could return a name once. A repeated recommendation was binding.
• NJAC convenor: Secretary, Department of Justice.
• Fourth Judges case = SCAORA v. Union of India, 16 October 2015, 4:1. The lone dissent was Justice J. Chelameswar. Ground: judicial primacy is part of the basic structure.
• Trap: the NJAC Act and the 99th Amendment both got assent on 31 December 2014 and took effect on 13 April 2015. They did not take effect in 2014.
• Trap: the higher judiciary has no reservation. Arts. 124, 217 and 224 are silent on it. Social-background data is collected only from 2018.
• First woman SC judge: Justice M. Fathima Beevi (1989).
• Lok Prahari (2021) brought the dormant Article 224A (ad hoc retired HC judges) back into use.

Mains Points

• For the NJAC:
• It would have ended "judges appointing judges".
• It added outside and executive inputs, as most democracies do.
• It required diversity among the eminent persons.

• It was backed by Parliament and the state legislatures.

• Against the NJAC:

• The Law Minister's seat plus a two-member veto gave the executive a back door, while the government is the biggest litigant.
• "Eminent person" was undefined.

• This is why the Court found it violated the basic structure (SCAORA, 2015).

• Collegium deficits that remain:

• Opaque decisions with no written criteria.
• Thin diversity: in 2018–25 only ≈3.8% SC, ≈2.0% ST and ≈15.3% women among new HC judges.
• The revised MoP has been stuck since 2017.

• The government sits on names, which shows that the executive keeps de facto (in practice) power through delay.

• Way forward:

• Finalise the MoP with time limits.
• Set up a permanent secretariat and published criteria.
• Record reasons, within Subhash Chandra Agarwal (2019).
• Consider an NCRWC-type commission with a judicial majority.
• Make timelines binding on both the government and the collegium. Together these would reconcile independence with accountability.