The recent controversy over the discovery of large amounts of cash at the residence of Delhi High Court judge Justice Yashwant Varma has reignited the debate on judicial appointments.

• Constitutional Framework for Judicial Appointments

• • Article 124(2): Deals with the appointment of Supreme Court judges.
  • Article 217: Governs the appointment of High Court judges.
  • The President of India is responsible for appointing judges to both the Supreme Court and High Courts.
  • The President must consult judges of the Supreme Court and High Courts as deemed necessary before making appointments
• Evolution of Judicial Appointments
  • The Constituent Assembly rejected replacing “consultation” with “concurrence,” fearing excessive power concentration in the judiciary.
  • The First Judges Case (1981) (S.P. Gupta case) held that “consultation” does not mean “concurrence.”
  • The Second and Third Judges Cases (1990s) reversed this stance, establishing the collegium system, where a body of senior judges controlled appointments, sidelining the executive.

• The National Judicial Appointments Commission (NJAC) Reform: The 99th Constitutional Amendment Act, 2014, created NJAC, aiming to balance judicial independence with executive oversight.
  • NJAC comprised six members: Chief Justice of India, Two senior-most SC judges, Union Law Minister and Two eminent persons.
    • Veto Power: Any two members of the NJAC could veto a recommendation if they disagreed.
  • This system sought to restore some executive representation in judicial appointments.
• Supreme Court Strikes Down NJAC (2015)
  • The NJAC was declared unconstitutional in a 4:1 verdict, citing a threat to judicial independence under the Basic Structure Doctrine.
  • The ruling argued that involving the Law Minister and eminent persons diluted judicial primacy in appointments.
• Criticism of Striking Down Of NJAC: The Striking down of NJAC was criticised by many as the:
  • Collegium system lacks transparency, accountability, and credibility.
  • There is a perception that Judicial appointments are influenced by lobbying and trade-offs, undermining merit.
  • There are also allegations of favoritism and lobbying.
• Parliamentary and State Support for NJAC
  • The NJAC amendment was passed with near-unanimous approval in Parliament.
  • It was ratified by 16 state legislatures, highlighting broad political consensus for reform.
• Missed Opportunity for Judicial Reform
  • The NJAC verdict overturned democratic consensus and retained a flawed system.
  • The Supreme Court rejected attempts to “read down” the law, which could have preserved NJAC with modifications.
  • The decision ignored the growing demand for greater accountability in judicial appointments.

Call for Reconsideration

• Given widespread dissatisfaction, the NJAC ruling should be revisited by a larger Supreme Court bench, similar to how the First Judges Case was later overturned.
• The issue is of significant public interest, and reforming judicial appointments remains crucial for maintaining credibility in the justice system.

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