Libertatem Magazine

Neo- Collegium: The Legacy of Fourth Judges’ Case

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In the long drawn battle, the tussle between executive and judiciary has touched another milestone where they have reached the point from which there is no turning back. . The Supreme Court in its recent celebrated judgment of Supreme Court Advocates-on-Record-Association and another Vs. Union of India, also popularly known as the Fourth judges’ case, has amicably preserved the independence of judiciary and declared the 99th Amendment Act and NJAC Act, 2014 to be “unconstitutional and void”.

After as many as 24 hearings on the matter, spanning over three months, it comes across most definitely that the decision reached would not have beenan easy one. After all, the preservation of the basic structure of the Constitution is the paramount task of the judiciary and any attempt to interfere in the same needs the serious deliberations.

The constitutional bench led by Justice Jagdish Singh Khehar, pronounced the historic judgment on October 16, 2015 in the favor of Petitioners, where they accepted the contentions of NJAC Act being violative of the Independence of Judiciary and therefore, in violation of the Basic Structure of the Constitution. As a consequence of the same, the old form of appointing the Supreme Court and High Court Judges, i.e., the collegium method shall prevail but with improved amour.

The call for this Neo-collegium system of appointment was made on November 2, 2015 when Supreme Court again heard the matter for reforming the old collegium system. In this regard, the Apex Court invited recommendations from all in this country.

The judgment was rendered in the ratio of 4:1, where the only judge who put forth a dissenting opinion was Justice Chelameswar. He noted against the majority declaration on NJAC by stating that, “I do not find anything inherently illegal about such a prescription that the two members of the NJAC can override the opinion of the other four and stall the recommendation (emphasis added).” He pointed out that, “Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various constitutional courts of this country is clearly not a certificate of efficiency.” At this juncture, for a better understanding of the issues at hand, it would be best to revisit the reasons for which such a decision was reached by the judges, which led to these concerns being raised and discussed not only within the judiciary, but throughout the country among academicians, practitioners, students etc.

Appointment of the eminent persons:

Much concern was raised regarding the arbitrariness in the appointment of “two” eminent persons in the committee formed by NJAC for the selection of judges. There were no standards laid in this regard, as to who shall be those two eminent persons or in what manner they shall be selected. This ambiguity was much debated among concerned people and therefore, was an inescapable drawback.

Also, the committee formed for the appointment of these eminent persons comprises of the Chief Justice of India, Prime Minister of India and the Leader of opposition. Now, it is undisputed that the government is the largest litigator in the courts. Therefore, the involvement of the executive in the appointment process alongwith the CJI was sure to undermine the institutional integrity of the judiciary and thereby its independence.

Veto power of the two members of the NJAC:

Through this veto power, which is given to any member of the committee under NJAC, any two members can reject the selection of a member. Well, that may not appear to be an arbitrary act but what makes it arbitrary is the presence of no standard as to how this power of veto is to be exercised. Without these standards, there may occur a constitutional crisis where no such appointment may take place at all..

Also, it should be noted that by the virtue of the provision of providing veto to every member of the committee, the benefit of such provision shall also be availed by those two eminent persons. The contention that in what capacity would these two members be in a position to overrule the decision of the three senior most judges which includes the CJI, also caught the attention of the people concerned.

Independence of judiciary and the basic structure doctrine:

Right from the 1973 judgment of the Supreme Court in the Keshvananda Bharti case, the basic structure doctrine always stood firm against the ambitious and arbitrary attempt of the legislative and the executive to mould the Constitution in their favour. But through judicial interpretation, the addition of Independence of judiciary into Basic structure doctrine has given in the hands of the judiciary an efficient tool for the successful check on arbitrary interference.

The quest for maintaining such judicial independence from the executive started from the First Judges case [S.P Gupta vs. Union of India] and has continued till date. Through the NJAC Act, the Union Minister of Law and Justice becomes the ex-officio member of the selection committee for the judges. This position not only violates the independence of the judiciary in the appointment of judges but also violates the doctrine of Separation of Power. Therefore, the involvement of the legislative/executive organs was condemned at the highest level and was a major ground for rejection by the guardians of the Constitution.


The above contention, no doubt, holds merit and the decision rendered by the Supreme Court through its judgment in the Fourth Judges’ case revolves around the above contentions only. Justice Jagdish Singh Khehar, on behalf of the majority pronounced that, “Clause (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary…The same are accordingly, violative of the principle of “independence of Judiciary”…That clause (c) of Article 124(1) is ultra vires the provision of the constitution, because of the inclusion of the Union minister in charge of Law and Justice…(this) in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of power”…also…clause (d) of Article 124A(1) which provide for the inclusion of two “eminent person” as Member of NJAC is ultra vires the provision of the constitution, for a variety of reasons…I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside”.

This resulted in automatically striking down of the entire Constitutional (99th Amendment) Act, 2014 which was pronounced liable to be set aside as being ultra vires the provision of the Constitution. With this judgment, the Supreme Court made its intention clear that in any circumstance, it shall not allow the executive/legislative to play a substantive role in the appointment process for the judiciary. Its order dated November 2, 2015 had called for a nation-wide response to propose recommendations for the improvement of the present collegium system. And soon in the coming hearing, it may be possible that effective changes may be seen in the appointment process which will be devoid of any violation of the very spirit of the Constitution.

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