Judicial Primacy in appointment of judges is a part of basic structure, however both proposed NJAC and the current collegium system violates that? Comment. (150 W/ 10 M)

Mentor’s Comment:

  • Primacy has been decided in 2nd judges case. The ideal of Judicial Primacy as embodied in Art – 124 and 217 of the constitution has been lauded as a guarantor of Judicial independence in appointments. Referring that explain the meaning of Primacy in Indian judicial appointments.
  • Further, compare how the Collegiums system (provides upper hand to judiciary in selection of judges as along with CJI, four senior most judges plays supreme role) with that of NJAC (where CJI as chairman and two senior most judges as member will play prominent role, also the two other members apart from law and justice minister should be selected by committee comprising CJI and others).
  • Next, analyze how both systems failed to establish Judicial Primacy as the mainstay of judicial appointments.
  • Mention way forward, what in your opinion is best way to maintain judicial primacy.
  • Bring conclusion based on the points mentioned in main part.

Model Answer:

  • The second judges’ case decided that the CJI has the final word, i.e. “primacy”, in judicial appointments. That case had held that judicial primacy in appointments was itself a part of the basic structure, since it was essential towards maintaining judicial appointments. The ideal of judicial primacy as embodied in Articles 124 and Articles 217 of the Constitution has been lauded as a guarantor of judicial independence in appointments. Going beyond the letter of the law, in my view, primacy should imply that if the judges are united, the candidate they back must get appointed, but with the oversight – not interference – of the executive.
  • Collegium System: The Chief Justice of India, along with four senior-most Judges of the Supreme Court would play a primary role in appointments to the judiciary. The executive’s role was reduced to a minimum and judiciary had the major controlling share.
  • NJAC: In the proposed system of NJAC, through 99th Constitutional Amendment Act, the CJI was to be the chairperson and had next two senior most Supreme Court judges along with him to represent judiciary. Then there were the law and justice minister (representing executive); and two eminent persons (who were to be selected by a committee comprising the CJI, Prime Minister and leader of the opposition). SC struck down the Constitution (99th Amendment) Act, 2014 and restored the collegium system, which NJAC wanted to replace.
  • But both the system, with all their merits as well as shortcomings, failed to establish Judicial Primacy as the mainstay in the judicial appointments. Collegium system turned out to be a case of “Judicial Exclusivity” rather than Judicial Primacy. It was not transparent, lacked accountability and came out as judicial aristocracy where the Chief Justice of India and the collegium became the initiator and appointer of judges, and the President of India was made only a formal approver in the process.
  • NJAC on the other hand, with the clause, where two members combined could exercise a veto power on a candidate, derailed the premises of judicial primacy, by giving advantage of any two people over the combined decisions of the three senior most members of judiciary. Primacy implies that if the judges are united, the candidate they back must get appointed.

Way Forward:

  • There is a need for a judicial appointment model which firstly ensures strong executive participation. Further, the nature of executive involvement should be equal in terms of number. The executive should be given a limited veto that can only be used in special circumstances. Lastly, the executive interference should only be limited to appointment and should play no role in transfer of Judges and appointment of Chief Justice. This kind of executive interference in judicial appointments would not hamper the independence of judiciary and the Judges as judicial independence was deemed one of the factors for striking down NJAC.
  • Unless it can be shown that giving judges the final say in appointments is the only way of safeguarding judicial independence, the premises of judicial primacy, will be just a word on the paper in the present system. The relaxation of judicial exclusivity in the manner proposed allows a certain degree of social oversight on judicial appointments. The voice of Parliament is brought to bear on the process of judicial selection, with a decisive role only in the event of a serious disagreement within the judiciary.


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