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.
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.
At the same time, the Collegium is in dire need of reform. A leading reason for this is the evident opacity in the Collegium’s functioning, and by extension, in how judges are appointed. Only as recently as October 2017, did the Collegium begin the practice of publishing its resolutions on the Supreme Court website. Even then, for a substantial time, the resolutions did not satisfactorily articulate what kind of factors were being considered for selecting a High Court judge to be elevated to the Supreme Court, or a lawyer or district judge being elevated to a High Court, or even as to why a judge or Chief Justice was being transferred from one Court to another. For instance, when Justice Varma, the High Court judge being alleged of corruption at the moment, was transferred from his parent High Court in Allahabad to the Delhi High Court in 2021, the Collegium had not mentioned any reasoning as to why this particular decision had been taken. While over the last two years, the resolutions became slightly more detailed in terms of revealing the social background and qualifications of candidates being elevated, under the current Chief Justice of India, unfortunately, the resolutions have become more terse.
Equally concerning has been the opacity with which in-house inquiries are conducted. Certainly the Chief Justice’s decision to make public on March 22 the documents, photographs and video pertaining to the alleged discovery of currency at Justice Varma’s residence is a step in the right direction. We also welcome the Chief Justice’s decision to make public that a three-member inquiry committee consisting himself and two High Court judges has been formed in pursuance. However, a lot more needs to be done to make both the Collegium’s overall functioning and the Court’s in-house inquiry process more transparent. Consider for instance, that between 2017 and 2021, over 1600 complaints about judicial misconduct were forwarded to the Chief Justice of India and High Courts and yet there is no information about what happened to these complaints. Despite three months passing since a sitting judge of the Allahabad High Court, Justice Shekhar Kumar Yadav, delivering a hate-speech targeting Muslims of which a video clip exists, there is no communication from the Collegium regarding whether an in-house inquiry was set up against him. Important to highlight, at this juncture, is that one way to streamline this internal disciplinary mechanism and make it more transparent is by reviving discussions, not around the NJAC Act but the Judicial Standards and Accountability Bill, 2010. That bill, which lapsed in the 16th Lok Sabha shortly after the 2014 general elections, encoded specific minor measures that could be taken against erring judges, including removal, a process much smoother than impeachment, and even mandated judges to publicly declare their assets. How the JSA Bill has been systematically ignored in favour of NJAC is also telling.
One significant reason why the overall transparency of the Collegium is urgent is because of the precise reason that the Union government, despite losing the NJAC case in 2015 took ten years to raise the issue again at a prominent level. All signs indicate that the executive already asserts prominent backdoor influence over judicial appointments. One, there are instances where recommendations of the Collegium are not approved for an indefinite period by the executive - for instance, over 15 percent of the names recommended for elevation to High Courts under former Chief Justice D.Y. Chandrachud’s Collegium were not cleared by the Union, even though as per the legal process established by the Supreme Court, the judiciary is supposed to have the final say over appointments. Recently, The Leaflet reported that in February 2025, even as the Union cleared some long pending recommendations for High Court appointments, it continued to exercise a form of “pocket veto” against certain names. Similarly, notable transfers were also stalled - the Collegium’s recommendation to transfer former Justice S. Murlidhar, who had bravely lambasted the Delhi police for its “inaction” in the 2020 Delhi riots, to the larger Madras High Court which was indefinitely stalled by the executive, only to never be reiterated by the Collegium, comes to memory immediately.
On the other hand, there are appointments which have been cleared on a fast-track basis. This is particularly true for appointments to the Supreme Court - since May 2023, judges recommended for elevation to the top Court were appointed within less than a week, on average, with the latest appointment in March this year coming four days within the recommendation. The fact that such a disparity exists indicates that the Union government has exercised a certain degree of final say in appointments and transfers, and the Collegium’s continued opacity sustains suspicions of its independence.
The collective interest should be in thinking about how the Collegium could be reformed. While the JSAB would partly address issues on judicial accountability, there must be complete transparency in the appointment process as well. The Collegium must, ideally, open applications to qualified members of the Bar and district judiciary, and after a rigorous assessment, finalise appointments to the High Courts and Supreme Court. A useful example to look at is the judicial appointment procedure adopted in South Africa, where a Judicial Services Commission (‘JSC’), a body consisting of 23 members which includes the Chief Justice, President of the Supreme Court of Appeal and even practising advocates and attorneys, opens applications to fill vacancies for permanent judge positions. Candidates fulfilling certain qualifying criteria then submit their applications, are shortlisted to go through an interview stage and if successful are nominated by the JSC for appointment by the President. Democratising the appointment process by ensuring an equality of opportunity to qualified candidates for judgeship positions can significantly resolve issues surrounding lack of diversity and nepotism in appointments. To accompany this, there must also be a Permanent Secretariat which devotedly keeps a record of the specific judgements delivered by district judges and High Court judges being considered for elevation to the High Courts and Supreme Court respectively, which are being considered for their elevations. Notably, during the former Chief Justice’s tenure, more than half of all appointments to the High Courts were lawyers who were directly elevated from the bench. Moreover, in practice, we understand that a considerable portion of these lawyers are public prosecutors, advocate generals or additional advocate generals. Naturally, they have pro-executive inclinations. Thus, the Secretariat must also maintain a record of the notable cases argued by the lawyers which are being considered for their direct elevations to High Courts or the Supreme Court. All these records must be made accessible to the public and not be shrouded from RTI’s ambit.
Legislators must understand that the NJAC cannot be considered to be a viable option unless the independence and accountability of the nominees is absolutely guaranteed, and unless the nominees could be subjected to Parliamentary scrutiny.
The clearest conclusion of it all is that while the Collegium, shrouded from transparency, has not been able to guarantee public trust in the judiciary, the proposed NJAC model, if effectuated, will close all possibilities of transparency and accountability in the judicial appointment process. Justice Varma’s case has given us the opportunity to collectively and coherently think through certain confounding problems with our judiciary - taking an alarmist and reactionary stance at such a moment will only push matters from bad to worse.
Note: The article was first published in Marathi in the Sunday Supplement of the Maharashtra Times.
