Judiciary is the most important organ of the Government as it acts as the “Guardian-protector” of the Constitution and the fundamental rights of the people. It ensures against the potential overabundances of legislative and executive organs. The Constitution of India is a solitary incorporated framework with district courts at the lower level, High courts at the middle level and Supreme court at the apex.

Articles 124, 217 and 222 of the Indian Constitution deal with the appointment of Supreme Court and High Court judges and the transfer of judges from one High Court to another. Appointment of Judges to the Higher Judiciary is done in the following manner:

  1. Through promotion from Lower Judiciary
  2. Through the direct elevation of practising lawyers and has working experience of advocate for at least 10 years.
  3. In the case of the Supreme Court through direct elevation and promotion from High Courts and been a judge for at least 5 years in High Court.

A trend of Judges’ Cases, started in the Supreme Court on how judges of the higher judiciary are to be appointed for the first time in 1981. In the First Judges Case of S.P Gupta vs Union of India-1981 the Hon’ble Supreme Court decided in favour of appointment given to the executive. In the Second Judges Case of Supreme Court Advocates-on Record Association vs Union of India –1993 the Apex Court in a landmark judgement approved for a system of appointment of judges to the Higher Judiciary, known as the Collegium in which the CJI along with two senior-most judges of the court were given the power to recommend the names for the appointment of judges. The court stated that “The role of CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.” The Third Judges Case, In re Special Reference 1 of 1998 the adjudgement of the Constitution Bench in the Second Judges case was upheld. However, the Court increased the number of senior-most judges to be consulted for the appointment to four from the existing two. The CJI was required to take counsel from each and every judge and only if passed unanimously, could be sent to the executive. Through these cases, the Judiciary implied to state that no other part of the state- including the Legislature and Executive interfere in the working of the Judiciary.

Later, on 31st December 2014, the President sanctioned to the 99th Constitution Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014. Taken together, these two pieces of legislation have established the National Judicial Appointments Commission (NJAC), which has been conferred with the power to designate judges to the Supreme Court of India and the High Courts. The NJAC comprises of the Chief Justice of India, two senior-most Justices of the Supreme Court, the Minister for Law and Justice, Government of India and two eminent persons selected by the Chief Justice of India, Prime Minister and Leader of Opposition in the Lok Sabha (Lower House of Parliament). Further, the NJAC, supersedes the Judicial Collegium, hitherto centrally responsible for all appointments, making its institution politically disputed and raising issues of judicial independence and autonomy.

However, the new amendment was challenged in the Supreme Court, in January 2015 in Supreme Court Advocates-on-Record Association v. Union of India. The main contention of the petitioners was that the amendment violated the independence of the judiciary, which is part of the basic structure of the Constitution. The fact that the Chief Justice of India will no longer have precedence in appointments was the key basis for such a claim. Further, a constitution bench on 16 October 2015 struck down the NJAC as unconstitutional by a majority of 4:1.

The main challenge that the Indian Judiciary faces with regard to appointments is the constant dilemma between NJAC and the Collegium as to which method is more effective. The current Collegium System of appointment is highly debated. It is a closed-door affair and is completely informal and opaque which creates various apprehensions about the process of appointment and there is no scope of holding the Collegium accountable in case of any discrepancies. The Judiciary appointing its own members also violates the principle of separation of powers and the principle of checks and balances which is fundamental to the Constitution. It highlights the Judicial Supremacy over other branches of the State. In most of the cases the choice of the Collegium is limited to the senior-most judges of the High Court for appointment to the Supreme Court. They overlook other meritorious and talented junior judges and advocates. Also, there is always a chance of conflict among the choices of the collegium which again makes it difficult to arrive at one choice.

The NJAC ensures transparency as it is an organised structure formed by the collective decision of nearly all organs of the government body and also because of its criteria for the appointment of judges. Furthermore, it takes responsibility as there is less extent of political impact as it comprises of Chief Justice, Law Minister and Opposition minister and furthermore this commission is liable for each appointment. Additionally, in conclusion quicker appointments by creating more vacancies. Likewise, it deals with the appointments by looking the criteria and their capacity and its benefits according to the guidelines given in the Act. This commission prioritizes proficiency, capacity and abilities in naming the Chief Justice as opposed to age. Also the Judiciary should consider NJAC as a way of lightening the administrative burden of appointing judges without a separate body for collection and checking of personal and professional backgrounds of prospective appointees.


All mediums of legal appointments may have a few points of interest and burdens and hence no specific framework can be treated as the best. Regardless of this, so as to keep up open trust in the appointments and to guarantee judicial independence the commission framework is maybe a compelling system for appointments. To guarantee the viability the commission it should be delegative in nature involving individuals from all organs of the body i.e., the Legislature, the Judiciary and the Executive.

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