Who Shall Judge the Judges? Revisiting the NJAC Case (2015)

Supreme Court Advocates-on-Record Association v. Union of India — popularly called the NJAC Case or the Fourth Judges Case — is one of the most consequential constitutional decisions delivered by the Supreme Court of India in the post-Kesavananda era. Pronounced on 16 October 2015 by a Constitution Bench of five Judges (Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel JJ.), the judgment runs to over a thousand pages and resolves, by a 4:1 majority, a question that had been debated in India almost continuously since the Constituent Assembly first convened in 1946: who should appoint the judges of the higher judiciary, and on what terms?

The Court struck down both the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 as unconstitutional, holding that they violated the basic structure of the Constitution by compromising the independence of the judiciary. In doing so, it restored the collegium system of judicial appointments that had evolved through the Second Judges Case (1993) and the Third Judges Case (1998).

This post unpacks the long historical run-up to the decision, the constitutional architecture that the 99th Amendment sought to put in place, the four reasoned majority judgments, the powerful dissent of Chelameswar J., and the legacy of the ruling — both for the doctrine of basic structure and for the everyday business of choosing the men and women who sit on the Supreme Court and the High Courts.

The Long Road to October 2015

The story of judicial appointments in India is, in many ways, the story of a tug-of-war between the Executive and the Judiciary, with the Constitution as both rope and referee. To understand what was at stake in 2015, one has to begin with the Constitution as originally enacted.

Articles 124, 217 and 222 — The Constitutional Scheme

Article 124(2) provided that every Judge of the Supreme Court "shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose," with the proviso that "in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted." Article 217(1) made similar provision for the appointment of High Court Judges, mandating consultation with the Chief Justice of India, the Governor of the State and (other than for the Chief Justice of the High Court) the Chief Justice of the concerned High Court. Article 222 dealt with transfers of High Court Judges.

The Constituent Assembly debated these provisions on 23 and 24 May 1949. Dr. B.R. Ambedkar, replying to amendments that would have required the concurrence of the Chief Justice of India or the confirmation of Parliament, famously observed that the British model (appointment by the Crown without limitation) was "dangerous", that the American model (Senate confirmation) was "cumbrous" and politically vulnerable, and that conferring a veto on the CJI was equally a "dangerous proposition" because "the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have." The middle course chosen — consultation with constitutional functionaries who are ex hypothesi well qualified to give proper advice — was, in his words, "sufficient for the moment."

That phrase — "sufficient for the moment" — would prove prescient.

The Three Judges Cases (1981, 1993, 1998)

The first three decades of the Republic saw judicial appointments made, by convention, with the concurrence of the Chief Justice of India. The system worked well — S.K. Bose's affidavit in the Second Judges Case records that of 547 appointments made between 1 January 1983 and 10 April 1993, only seven were made against the views of the CJI. But the convention was challenged by the First Judges Case (S.P. Gupta v. Union of India, 1981 Supp SCC 87), where a 4:3 majority held that "consultation" did not mean "concurrence", that the CJI's opinion had no primacy, and that the "ultimate power" of appointment of judges rested with the Union Government.

The First Judges Case unleashed an era of unhealthy executive primacy. The 121st Report of the Law Commission of India (1987) and the Arrears Committee Report (1989-90) documented disturbing patterns: by-passing of the Chief Justices of High Courts, withholding or delaying recommendations, recommendations being reopened on a change of personnel, and appointments being driven by considerations of "political expediency, regional or communal sentiments." Acting Chief Justices were reportedly made permanent only after agreeing to recommend names suggested by the Executive.

This is the backdrop against which the Second Judges Case (Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441) was decided. A nine-Judge Bench, by a 7:2 majority, overruled S.P. Gupta. The majority, speaking through Justice J.S. Verma, held that the appointment of judges is a participatory consultative process; that "consultation" with the CJI in Articles 124(2) and 217(1) results in primacy of the judicial opinion (not the individual opinion of the CJI, but a collective opinion formed in consultation with senior colleagues); and that, save for cogent reasons, a unanimous reiterated recommendation must be accepted by the Executive. The Third Judges Case (Re Special Reference No. 1 of 1998, (1998) 7 SCC 739) — a unanimous nine-Judge advisory opinion — refined the doctrine, holding that for Supreme Court appointments the CJI must consult four senior-most colleagues, and for High Court appointments two. The "collegium" was born.

The Build-up to the 99th Amendment

The collegium system attracted criticism from the very beginning, much of it from within the legal fraternity itself. Justice Ruma Pal famously observed that "consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and 'lobbying' within the system."

Successive attempts were made to replace it. The Constitution (Sixty-seventh Amendment) Bill, 1990 proposed a National Judicial Commission but lapsed on dissolution of the Lok Sabha. The Justice M.N. Venkatachaliah Commission (the National Commission to Review the Working of the Constitution, 2002) recommended a National Judicial Commission with a different composition. The Constitution (Ninety-eighth Amendment) Bill, 2003 lapsed similarly. The Constitution (One Hundred and Twentieth Amendment) Bill, 2013 was passed by the Rajya Sabha but died with the dissolution of the 15th Lok Sabha.

In 2014, the newly elected NDA Government introduced the Constitution (One Hundred and Twenty-first Amendment) Bill and the National Judicial Appointments Commission Bill simultaneously. Both were passed by the Lok Sabha on 13 August 2014, by the Rajya Sabha on 14 August 2014, ratified by 16 State Legislatures, and received the Presidential assent on 31 December 2014. They were brought into force on 13 April 2015.

The Architecture of the NJAC

The 99th Amendment did three principal things. First, it amended Articles 124(2) and 217(1) to provide that judges shall be appointed "on the recommendation of the National Judicial Appointments Commission" in place of consultation with the CJI. Second, it inserted Articles 124A, 124B and 124C into the Constitution. Third, it made consequential amendments to Articles 127, 128, 222, 224, 224A and 231.

Article 124A constituted the NJAC as a six-member body:

• The Chief Justice of India (Chairperson, ex officio);
• Two senior-most Judges of the Supreme Court next to the CJI (Members, ex officio);
• The Union Minister in charge of Law and Justice (Member, ex officio);
• Two "eminent persons" to be nominated by a Committee comprising the Prime Minister, the CJI and the Leader of Opposition (or Leader of the largest opposition party) in the Lok Sabha. One of the two had to be from SC/ST/OBC/Minorities or Women; tenure was three years and they were not eligible for renomination.

Article 124B charged the NJAC with the duty to recommend persons for appointment as CJI, Judges of the Supreme Court, Chief Justices and Judges of the High Courts, and to recommend transfers, ensuring that the person recommended was of "ability and integrity."

Article 124C authorised Parliament to regulate the procedure by law and empowered the Commission to lay down regulations.

The accompanying NJAC Act elaborated this scheme. Critically, Section 5(6) and Section 6(6) provided that the Commission shall not recommend a person for appointment if any two members disagreed. Section 5(2) provided that the senior-most Judge of the Supreme Court would be recommended for appointment as CJI only if the Commission considered him "fit" — a formulation that struck many as a license to depart from the well-settled convention of seniority. The first proviso to Section 5(2) introduced seniority as a primary consideration for elevation from High Courts to the Supreme Court — a departure from the existing convention of regional representation.

Within months, a bunch of writ petitions led by Writ Petition (Civil) No. 13 of 2015 filed by the Supreme Court Advocates-on-Record Association (with several Bar Associations, Senior Advocates and citizens joining) was placed before the Supreme Court under Article 32. They contended that both enactments violated the basic structure of the Constitution by compromising the independence of the judiciary and the separation of powers.

The Bench, the Recusal and the Argument

The matters were heard by a five-Judge Constitution Bench. The Bench composition itself became a preliminary controversy: Mr. Fali S. Nariman objected that Khehar J., as the third senior-most Puisne Judge and a member of the existing collegium, had a "significant constitutional power" he stood to lose if the NJAC came into force, and was therefore not free of bias. By a unanimous order delivered on 22 April 2015 (with detailed reasons given on 16 October 2015), the Bench rejected the recusal application. Following the principles of Dimes, Pinochet and P.D. Dinakaran, the Bench held that all parties professed to be promoting the same cause — an independent and impartial judiciary — and that the doctrine of necessity in any event saved the situation, since every Judge of the Court would, on the petitioners' logic, be similarly disqualified.

The Union of India, represented by Attorney General Mukul Rohatgi, raised three preliminary objections — including a request for reference to a larger Bench to reconsider the Second and Third Judges cases. The petitioners, led by Mr. Nariman, Mr. Anil Divan, Mr. Arvind Datar, Mr. Ram Jethmalani and Mr. Santosh Paul, stoutly defended the existing scheme. The hearings stretched over several months in 2015.

The Majority Judgments

Four separate concurring judgments make up the 4:1 majority. They cover overlapping ground but with distinct emphases.

Khehar J. — The Lead Judgment

Khehar J. delivered the lead opinion, exhaustively tracing the constitutional history, the Constituent Assembly Debates, the legislative history of the various amendment Bills, and the case law on basic structure. His central holding rests on three propositions: (i) the independence of the judiciary is part of the basic structure; (ii) the primacy of the judiciary in judicial appointments is integral to that independence; (iii) the impugned amendment dilutes that primacy and is therefore void.

He trained particular fire on the Union Law Minister's presence in the NJAC. The Union of India is "the largest litigant in the country", he reasoned; permitting it to participate in the selection of the very judges who would adjudicate against it offends both the rule of law and the appearance of justice. The Constituent Assembly had, after considering the British, American, Canadian and Australian models, consciously excluded the Legislature and reduced the Executive's role to one of consultation precisely to prevent political influence in judicial appointments. The 99th Amendment reversed that conscious choice.

Lokur J. — The Historical Defence

Justice Madan B. Lokur, in a magisterial 580-paragraph opinion, traced the history of judicial appointments from the Sapru Committee (1945) through the Ad hoc Committee on the Supreme Court, the Memorandum of the Conference of Chief Justices of March 1948, the proposed Schedule III-A and Instrument of Instructions to the President, the Constituent Assembly Debates, the 14th, 80th and 121st Reports of the Law Commission of India, the Arrears Committee Report, the three Judges cases, and the Memorandum of Procedure of 1999.

Two themes dominate his judgment. First, "the executive interference with the appointment process began almost immediately after Independence" and grew steadily worse — a fact documented contemporaneously by Chief Justices, by the Law Commission and by Parliament itself. Second, the executive had taken full advantage of the First Judges Case to assert "absolute executive primacy", and the Second Judges Case was a corrective necessitated by this abuse rather than a judicial usurpation. He vigorously defended the Second Judges Case from the Attorney General's submission that it had "turned Article 124(2) on its head" — observing that the misunderstanding lay with the political executive's defeatist attitude, not with the judgment.

Kurian Joseph J. — The Pragmatic Voice

Justice Kurian Joseph emphasised the practical reality of judicial appointments. The collegium had its faults, no doubt — and he candidly acknowledged them — but the cure could not be worse than the disease. The presence of the Law Minister and two unguided "eminent persons" with veto power created the very real possibility that worthy candidates approved unanimously by the three judicial members could be vetoed by two non-judicial members. That, he held, was constitutionally untenable.

Goel J. — The Doctrinal Anchor

Justice Adarsh Kumar Goel anchored the holding firmly in the doctrine of basic structure. Drawing on Kesavananda Bharati, Indira Nehru Gandhi v. Raj Narain, Minerva Mills, Waman Rao and I.R. Coelho, he reasoned that the constituent power of Parliament under Article 368, though plenary, cannot alter the basic structure. The independence of the judiciary, the rule of law, judicial review and separation of powers are all part of the basic structure. Methodological independence — the manner in which judges are chosen — is not merely a procedural matter; it is the gateway through which judicial independence is preserved or compromised.

The Three Constitutional Infirmities

Reading the four majority opinions together, the constitutional infirmities of the NJAC scheme can be distilled into three.

First, the Law Minister's presence. This was held to violate both the independence of the judiciary and the separation of powers. The Law Minister represents the political-executive — the very organ whose actions are most frequently subject to judicial scrutiny. Its participation in selecting the Judges who will sit in judgment over those actions is, the Court held, structurally incompatible with judicial independence.

Second, the two "eminent persons". This was the soft underbelly of the NJAC. The Constitution prescribed no qualifications, no eligibility criteria, no subject-matter requirements. The Committee that would nominate them — Prime Minister, Leader of Opposition, CJI — was politically composed, with the CJI in a minority of one. Bipartisan compromise between the political members was not just possible but probable. And once nominated, the two eminent persons together had the power, under Section 6(6), to veto a recommendation supported unanimously by the CJI and the two senior-most Judges. The judicial members of the NJAC could thus be reduced to a numerical minority on appointments to the very institution they led. Khehar J. suggested a saving construction — entrenching the nomination process by requiring the full court of the Supreme Court to vote on a panel — but in the absence of such safeguards in the impugned text, the provision could not be sustained.

Third, the exclusion of the Chief Justices of the High Courts from the appointment process for High Court Judges — a departure from the unamended Article 217(1), and one that further weakened federal and judicial inputs into the selection process.

The Dissent of Chelameswar J.

It would be incomplete — and unfair — to discuss this judgment without taking serious note of the dissent of Chelameswar J. His was no perfunctory disagreement. In a powerful and self-critical opinion, he asked the Court to look in the mirror.

"We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence maturity and nature could digest?"

His core constitutional argument was crisp: the basic feature is not primacy of the CJI, but the non-vesting of absolute power in any single organ. Primacy of the judicial opinion in the appointment process is not a normative constitutional fundamental — it is one possible institutional choice among many, and Parliament was within its constituent power to choose differently. The exclusion of the executive from the appointment process, he pointed out, has no parallel in any major democratic constitution. The Constituent Assembly had emphatically rejected the proposal that the CJI's concurrence be made a condition for appointment.

He acknowledged the dangers identified by the petitioners, but insisted that potential abuse is no ground for invalidating a constitutional provision. The remedy is to structure the power, not to refuse it. He proposed safeguards — including a requirement that "eminent persons" be nominated only after a panel-and-vote process within the full Court — but found nothing in the impugned amendment that warranted striking it down.

The Chelameswar dissent has acquired increasing resonance with the passage of time, particularly as the working of the restored collegium system has continued to attract criticism from the Bar, the Bench and the political branches. But on 16 October 2015, it was a dissent.

The Disposal

The operative order of the Court read as follows. The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases, was rejected. The Constitution (Ninety-ninth Amendment) Act, 2014 was declared unconstitutional and void. The National Judicial Appointments Commission Act, 2014 was declared unconstitutional and void. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts, and transfer of Chief Justices and Judges of High Courts from one High Court to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (i.e., the collegium system) — was declared to be operative.

Significantly, the Court directed the matter to be listed on 3 November 2015 to consider the introduction of appropriate measures, if any, for an improved working of the collegium system. The majority recognised, in other words, that the collegium had its faults and could not be defended from criticism. What the majority would not accept was that the cure for those faults lay in handing over the appointment process to a body in which judicial primacy had been displaced.

A Brief Note on Doctrine — The Limits of Article 368

The NJAC judgment is, doctrinally, a powerful application of the basic structure doctrine. The holding rests on a sequential argument:

1. Independence of the judiciary is a part of the basic structure of the Constitution (settled since the First Judges Case, repeatedly affirmed).
2. Methodological independence — the manner of appointment — is integral to judicial independence, because if the appointment process is captured, the independence of those appointed is compromised at the source.
3. Primacy of the judicial opinion in the appointment process, expressed through the collegium of the CJI and the senior-most Judges of the Supreme Court, is the institutional means by which methodological independence has been secured under our constitutional convention since 1950 (and indeed earlier).
4. Therefore, displacing that primacy — by inserting the Law Minister and unguided "eminent persons" with a veto into the appointment body — alters a basic feature of the Constitution and is beyond the constituent power of Parliament under Article 368.

Step 3 is the contested step. The Chelameswar dissent attacks it head-on, arguing that primacy of the judicial opinion is one institutional choice, not a constitutional necessity. The majority's response is that constitutional convention developed over decades, when so interlinked with constitutional provisions, becomes part of the constitutional law itself — and that, regardless of theoretical alternatives that may exist in the abstract, the displacement of primacy in the impugned manner (with the executive Law Minister and unguided eminent persons capable of vetoing the judges) effectively reintroduced the very executive primacy that decades of constitutional history had repudiated.

Legacy and Aftermath

A decade on, the NJAC judgment continues to provoke debate.

The collegium system was duly restored. In November 2015, the Court did take up the question of improving its working, inviting suggestions from the Bar, the public and the political branches. A Memorandum of Procedure for the working of the collegium was drafted, but its finalisation became enmeshed in the very tensions between the Executive and the Judiciary that the NJAC had sought to mediate. To this day, friction over the speed and substance of judicial appointments remains a recurring feature of Centre-Court relations.

Critics — both within the political class and outside it — have argued that the NJAC judgment was an over-reach, that "judges appointing judges" is not a constitutional command but a constitutional convention erected into a doctrine, and that the basic structure doctrine, when stretched to invalidate a constitutional amendment passed by both Houses of Parliament with the requisite ratifications and Presidential assent, sits uneasily with the principle of representative democracy. Vice-President Jagdeep Dhankhar's December 2022 maiden Rajya Sabha speech labelled the decision "an unprecedented encroachment on the powers of the parliament by the judiciary."

Defenders of the judgment point to the empirical record of executive interference in judicial appointments documented in the 14th, 80th and 121st Reports of the Law Commission, the Arrears Committee Report and the Subhash Sharma orders — and to the fact that the entire purpose of an entrenched, non-amendable basic structure is precisely to put certain foundational constitutional choices beyond the reach of contemporary majorities.

What is undeniable is that the NJAC judgment — together with Kesavananda Bharati (1973), Indira Nehru Gandhi v. Raj Narain (1975), Minerva Mills (1980) and I.R. Coelho (2007) — completes the architecture of the basic structure doctrine. After the NJAC judgment, the proposition that the constituent power of Parliament under Article 368, however broad, is not a power to alter the foundational features of the constitutional order is no longer seriously contestable as a matter of Indian constitutional law.

Conclusion

At its heart, the NJAC Case is about a single, deceptively simple question: who is best equipped to choose the men and women who will sit in judgment on the laws made by Parliament, the actions of the Executive, and the rights and liberties of the citizens? The Constituent Assembly's answer was a fudge — "consultation" between the President and the CJI, with the rest left to convention. For three decades that fudge worked. For the next decade and a half it broke down. From 1993 to 2014 the Court reconstructed it as a collegium. In 2014 Parliament tried to remake it. In 2015 the Court said no.

Whether the Court was right to say no — and whether the collegium it preserved is fit for purpose — will remain debated for as long as judges sit and lawyers argue. What the NJAC judgment leaves us with, beyond its specific outcome, is a clear constitutional commitment: that whatever the institutional form of the appointment process, the independence of the judiciary and the primacy of the judicial voice in selecting its own members are not bargaining chips. They are part of the inviolable core of the Constitution that Parliament gave itself in 1950.

That is the constitutional inheritance the Court reaffirmed on 16 October 2015. Whether and how it should be reformed — within the four corners of basic structure — is the question the next generation of judges, lawyers and lawmakers will have to answer.

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This blog post is a summary of the law as declared by the Supreme Court of India in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, decided on 16 October 2015. Readers are encouraged to read the full judgment for a complete understanding of the Court's reasoning and the dissent.