Collegium, Commission and the Truth
The revival of the NJAC debate ten years after a Constitution Bench struck it down unravels more questions than answers. For one, it reveals the brazenly compromised personality of the Collegium and invokes us to collectively rethink what must a truly independent future for judicial appointments look like
Indira Jaising
Published on: 8 April 2025, 04:05 pm

SINCE THE ALLEGED DISCOVERY of sacks of burnt currency at the official residence of Justice Yashwant Varma, a former judge of the Delhi High Court last month, the Union government has rather swiftly re-ignited a long pressing demand to establish a National Judicial Appointments Commission for appointment of judges to India’s higher courts. Previously brought in through the 99th Constitutional Amendment, the NJAC was proposed to be a committee of six members consisting of the Chief Justice of India, the two senior-most judges of the Supreme Court, the Union Law Minister and two “eminent” persons nominated by a committee comprising the CJI, Prime Minister and the Leader of Opposition. Any two members of the NJAC could veto a recommendation.
In 2015, a five-judge Constitution Bench had struck down the amendment noting that it compromised the independence of the judiciary and thus, violated the basic structure of the Constitution. On March 21, Vice President and Rajya Sabha Chairman Jagdeep Dhankar loudly stated that the NJAC Act dealt with the “malaise very severely”. ““If the malaise had been dealt with, perhaps we would not have countenanced such kind of issues,” Dhankar had stated.
To put it bluntly, the NJAC system, as had been proposed, cannot be the way out simply due to the reason that it provides disproportionate discretion to the executive on appointments.
As these reiterations surrounding the NJAC have now reached a fever pitch, with even opposition leaders expressing disavowal of the existing Collegium system of appointments, where the Chief Justice of India and senior judges of the Supreme Court and High Courts decide judicial appointments, it is important that we clearly understand the critical problems with the proposed NJAC model, the primary issues with the existing Collegium system, as well as the potential solutions that may be available to us.
To put it bluntly, the NJAC system, as had been proposed, cannot be the way out simply due to the reason that it provides disproportionate discretion to the executive on appointments. Since there would be no transparency in the selection of the nominees, there was an understandable concern that the veto arrangement would ultimately allow the Union to have a final say over appointments.