Revision summary
The Second and Third Judges Cases made the collegium the method of appointing Supreme Court and High Court judges. The 99th Amendment and the NJAC Act, 2014, tried to share that power with the Law Minister and two eminent persons. SCAORA (2015) struck both down as damaging basic-structure judicial primacy, with Justice Chelameswar dissenting. The Court asked for a better Memorandum of Procedure; that transparency work is still unfinished. Independence of appointment was protected; openness of appointment was not delivered by the judgment alone.
Model answer
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Introduction
Appointment of Supreme Court and High Court judges is the hinge of judicial independence. Parliament tried to replace the collegium with a National Judicial Appointments Commission through the Constitution (Ninety-ninth Amendment) Act, 2014, and the NJAC Act, 2014. In Supreme Court Advocates-on-Record Association v. Union of India (2015) a five-judge Bench struck both down. A critical examination must weigh independence against transparency.
Body
What the NJAC was meant to do
- Articles 124 and 217, as originally read, spoke of appointment by the President after consultation with the Chief Justice; the Second Judges Case (1993) and the Third Judges Case (1998) turned that consultation into a collegium of judges whose advice binds the executive.
- The 99th Amendment inserted Articles 124A, 124B and 124C and created a six-member NJAC: the Chief Justice, two senior Supreme Court judges, the Union Law Minister, and two eminent persons chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition.
- The NJAC Act, 2014, laid the procedure, including a veto if any two members disagreed, which could let the political members block a judicial choice.
- The political case for the Commission was that a closed collegium lacked transparency, delayed filling of vacancies, and gave sitting judges a say in choosing their own successors.
What the 2015 judgment held
- The majority (Justice Khehar, with Justices Lokur, Joseph and Goel) held that judicial primacy in appointments is part of the basic structure after Kesavananda Bharati, and that the NJAC as designed damaged that primacy.
- The presence of the Law Minister and the two eminent persons, plus the two-member veto, was treated as an executive toehold inside the appointment of the higher judiciary.
- The Court revived the collegium and asked for a better Memorandum of Procedure to meet the very criticisms that had justified the NJAC.
- Justice J. Chelameswar dissented: he would have upheld the amendment, stressing that independence is not the same as judicial monopoly and that sunlight in appointments is also a constitutional value.
Critical examination
- The judgment correctly protected Article 50’s direction to separate the judiciary from the executive, and it remembered the Emergency-era supersessions that made judges fear the government of the day.
- It was weaker on design: striking down the entire 99th Amendment left no statutory commission, no recorded reasons, and no outside audit, which the dissent had warned against.
- Vacancies, in-house opacity, and slow MoP talks after 2015 show that restoring the collegium did not by itself produce a better appointments system.
- A fair critique therefore accepts the basic-structure holding on primacy, and still says that a more transparent, judge-led process with published criteria would have served both independence and public confidence.
Way forward
- Finalise a Memorandum of Procedure with written reasons, eligibility criteria and a timeline for filling High Court vacancies.
- Keep judicial primacy, but add a secretariat and limited non-judge inputs on integrity and diversity, without a political veto of the 2014 kind.
Flow diagram
flowchart TD C[Collegium Second and Third Judges Cases] --> N[99th Amendment and NJAC Act 2014] N --> S[SCAORA 2015 struck down] S --> P[Judicial primacy restored] S --> M[Memorandum of Procedure pending] P --> I[Independent higher judiciary]
Conclusion
The 2015 judgment saved judicial primacy in appointments and struck down the NJAC and the 99th Amendment as a threat to independence. It did not cure the collegium’s secrecy. Higher-judiciary appointment in India still needs a transparent, judge-led process, not a return to executive veto dressed as a commission.
Quick related
Students also ask
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Did the 2015 Court say Parliament can never change appointments?
No. It said this Commission, with a political veto, damaged judicial primacy. A better-designed, judge-led process with more transparency was left open through the Memorandum of Procedure.
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Is the NJAC Act still in force?
No. Once the 99th Amendment was void, the Act had no constitutional peg and did not operate.
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