Judicial Appointments Conundrum Post-NJAC Verdict

Supreme Court’s ‘Basic Structure’ verdict set bad precedent: VP


From UPSC perspective, the following things are important :

Prelims level: Kesavanananda Bharati Case, NJAC

Mains level: Collegium system, NJAC


The Vice-President while addressing the 83rd Conference of Presiding Officers said that the Kesavananda Bharati case judgment of 1973 set a bad precedent by seeking to establish judicial supremacy.

Kesavananda Bharati Case (1973)

  • The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
  • The case is also known as the Fundamental Rights Case.
  • The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
  • The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
  • Key outcomes were:
  1. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
  2. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

Why are we discussing it now?

Ans. Centre vs. Judiciary Tussle

  • The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
  • Since few days, Judiciary and Executive are at loggerheads.
  • In political sphere, there is a greater resentment against the SC verdict striking down the NJAC Act.
  • Comments over appointment/transfer of judges in non-transparent manner has become a very common.


National Judicial Appointment Commission (NJAC)

  • The NJAC was a body that was proposed to make appointments of Chief Justices, Supreme Court judges, and High Court judges in a more transparent manner as compared to the existing collegium system.
  • It sought to replace the Collegium System.
  • It was proposed via the National Judicial Appointments Commission Bill, 2014.
  • The bill was passed by both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent.
  • The commission was established by the 99th Constitutional Amendment Act, 2014.
  • The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.


Reasons behind VP’s harsh comments

Ans. Parliamentary Supremacy (Mandate of the People) overpowers Basic Structure

  • VP said that in a democratic society, “the basic” of any “basic structure” has to be the supremacy of the mandate of the people.
  • Thus the primacy and sovereignty of Parliament and legislature is inviolable.
  • He said all constitutional institutions — judiciary, executive and legislature— are required to remain confined to their respective domains and conform to the highest standards of propriety and decorum.
  • He said the power of Parliament to amend the Constitution and deal with legislation should not be subject to any other authority.


  • After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects.
  • Many former judges and legal experts are supporting the NJAC.
  • However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.
  • It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings.


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