Sunday, May 19, 2024
HomeOpinionsDigression from constitutionalism by constitutional authorities

Digression from constitutionalism by constitutional authorities

Also Read


There has been a mistrust between the Executive and Judiciary, that led to instances of conflict between these two branches of government. The Supreme Court’s AOR v. Union of India, 2015 case, known as NJAC ruling, has sparked discussion among these the democratic institutions[1]. This decision concerns both the independence of the Indian judiciary as well as the nomination of judges by other judges.

The National Judicial Appointment Commission was a constitutional body established particularly to handle the task of selecting and transferring judges. It was suggested to take the place of the long-standing Collegium method of appointing judges[2].

In place of the collegium system, these statutes set forth the establishment of a commission to name justices to the Apex Court and high courts.


Changes proposed –

The Constitution (99th Amendment) Act altered clause 2 of Article 124 and added three important new Articles—124 A, B, and C—to replace the collegium system. The National Judicial Appointments Commission was established by Article 124A. The NJAC was given the power to nominate judges to Apex Court and the several high courts under Art. 124B, and Parliament was given the authority to enact legislation governing the NJAC’s operation under Article 124C. The NJAC was to consist of six individuals:

  • Chief Justice of India — the ex officio Chairperson
  • Two senior-most Supreme Court Judges — ex officio members
  • Union Minister of Law and Justice — ex officio member
  • A committee made up of the Chief Justice of India, the Prime Minister of India, and the Leader of the Opposition in the Lok Sabha will nominate two famous members of civil society; one of the eminent members must be a member of the SC/ST/OBC/minority or female group. These candidates couldn’t be nominated again after their initial three-year term.

The NJAC Act also stated the selection process for judges. The NJAC was to suggest judges for the SC and HC on the basis of competence, merit, and “other factors stated in the regulations” whereas the Chief Justices of India and the high courts were to be suggested on basis of seniority. Any 2 NJAC members could veto a proposal if they were not satisfied with it.


“The 99th Amendment of the NJAC”, Act’s legality were contested before the Supreme Court. The petitioners contested it on the grounds that the Act broke the Constitution’s fundamental principles[3]. In 2014, many petitioners petitioned the Supreme Court to declare the NJAC Bill and the 99th Amendment unconstitutional. The Supreme Court Advocates-on-Record Association (SCAORA) made complaint in initial months of 2015, arguing that both Acts provisions were illegal and void.

It stated that this Amendment undermined “primacy of the collective view of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” by allowing a “majority of three non-Judge members” to veto or suspend their collective recommendation. The fundamental framework of the Constitution, of which the autonomy of the court was a key component, had been “gravely” undermined by the Amendment.[4]

Additionally, it argued that because the NJAC Act was approved by both Houses of parliament while Articles 124(2) and 217(1) as authentically established were still in effect and the “99th Amendment” had not been approved by the President, it was “invalid” and “ultra vires” to the Constitution.


A constitutional bench of 5 judges ruled against the NJAC act, invalidating the 99th constitutional amendment, with a vote of 4:1. The panel decided that NJAC was “unconstitutional” and gone against the “foundational framework of the constitution” as laid down by Kesavananda Bharati case.[5]

According to Judge Kehar, the veto power can be detrimental to the selection of judges. Because “eminent persons” might not concur with the decision made by the commission’s judges that a candidate is qualified for nomination, the candidate will not be appointed. In his opinion, it is troublesome since “eminent persons” may not have any legal expertise. The judges ruled that the Amendment Act was “blatantly unconstitutional” because “eminent persons” were not subject to any qualification requirements. The court held that the Constitution provided for the supremacy of judiciary in appointment of judges.[6]

The court also considered the Union law minister’s participation on the panel to be troubling. Due to the fact that the government files the majority of cases in higher courts, the court believed that their involvement could result in a possible conflict of interest. The court believed that the Minister’s presence jeopardised the autonomy of the law-making authority and the division of powers, which were fundamental elements of the Constitution.

The NJAC Act was deemed unconstitutional for 2 main reasons: First, the Constitution requires that the judiciary be given priority and sovereignty in the nomination of judges to higher courts. Second, judicial precedence is a fundamental element of the Constitution.


It could be concluded that the attempt of NJAC was a good step in the field of improving judicial accountability in the form of collegium system, however, it was not free from loopholes as discussed. Whether or whether not this decision represents a textbook case of judicial overreach, judicial activism preserved the sovereignty of judiciary and protect its survival. Since the judiciary is the only branch of constitutional bodies that has the power to overturn laws, its importance cannot be understated.

So, this ruling looks to me was an attempt to keep the judiciary as far away from any political influence as possible. Perhaps the judges worry that any political interference will expose them to undue risk and that the principle of reciprocity may be applicable. It is right that the government is one of the most active litigants in Indian courts, and if the government had a say in the selection of judges, the decision might have been subconsciously influenced.

Here, the 99th Amendment was tipping the scales in favour of the executive, posing a possible danger to judicial autonomy, which is unquestionably imperative to the fundamental principles of the constitution and a precondition for a productive and unbiased judicial structure. As a result, this amendment is undermining the foundation of the constitution.

Though this judgement reinstates the pre-existing verdict, it also determined to address the issues regarding the same. Thus, the procedure of collegium system in appointing the judges should have been more transparent and impartial. The body of NJAC should have kept in mind their authority in exercising their powers and duties regarding this matter.


[1] The Supreme Court’s AOR v Union of India (supreme court)

[2] Singh A (The Need for a National Judicial Appointment Commission and the Appointment of Jurists January 6, 2023)

[3] Sengupta A, “Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment” (November 28, 2015) <Vol. 50, No. 48 (NOVEMBER 28, 2015), pp. 27-30>

[4] Subramanium G, “The NJAC Case and Judicial Independence” [2018] Appointment of Judges to the Supreme Court of India 168

[5] Kesavananda Bharati vs State of Kerala on 24 April, 1973 (4 SCC 225 1461)

[6] Supreme Court Advocates-on-Record Ass’n v Union of India, (2016) 4 SCC (Supreme Court)

  Support Us  

OpIndia is not rich like the mainstream media. Even a small contribution by you will help us keep running. Consider making a voluntary payment.

Trending now

- Advertisement -

Latest News

Recently Popular