"Barter System of Appointments": The Debate Over The Collegium System And The NJAC

29 September 2017
In October 2015, the Supreme Court struck down the 99th constitutional amendment and the NJAC Act. Even with the act struck down, few had faith in the collegium system.
Sonu Mehta / Hindustan Times / Getty Images

On 25 September, Justice Jayant Patel of the Karnataka High Court submitted his resignation to the president of India, reportedly after the president proposed transferring him to the Allahabad High Court. Patel was first appointed to the Gujarat High Court, as an additional judge, in December 2001. He was transferred to the Karnataka High Court in February 2016, where he was the senior-most judge after the chief justice in the state. His transfer to Allahabad was proposed less than a month before SK Mukherjee, the present chief justice of the Karnataka High Court, will complete his term, on 9 October. If he had accepted the transfer, Patel would have been the third in seniority among the judges in Allahabad.

The circumstances surrounding Patel’s resignation have invited criticism from many. During his stint in Gujarat, Patel had directed the Central Bureau of Investigation to conduct a probe into the death of Ishrat Jahan, a 19-year-old resident of Mumbai who was allegedly killed in an encounter Gujarat in 2004. Further, Patel had seemingly been passed over for elevation in the past. In September 2016, the president appointed five chief justices, four of whom were junior to Patel. In February 2017, the Supreme Court recommended nine names for appointment as chief justices of various high courts—Patel did not feature in the list, although he was senior to all those who did.

In the cover story for the June issue of The Caravan, Atul Dev reported on the former chief justice JS Khehar and, in particular, the tussle between the judiciary and the executive over the appointment of judges to higher courts. Dev examines how, through three landmark cases known as the First, Second and Third Judges cases, the Supreme Court held that appointments to the judiciary by the president must be on the basis of recommendations of a collegium of Supreme Court judges comprising the chief justice of India the next four senior-most judges. Though the Constitution only mandates that the decision must be after “consultation” with the chief justice, the court held that the concurrence of the judiciary was necessary for judicial appointments.

In 2014, the parliament passed the 99th constitutional amendment and the National Judicial Appointments Commissions Act, which sought to replace the collegium system of appointments and remove the primacy of the judiciary’s opinion. In October 2015, the Supreme Court struck down both the amendment and the NJAC act. In the following extract from his cover story, Dev discusses the arguments surrounding the NJAC debate, including the threat of political interference in the appointments process.

The Narendra Modi governmentlocked horns with the judiciary over the question of appointments even before it passed the NJAC Act. In June 2014, a month after the government came to power, the Supreme Court collegium, headed by Chief Justice RM Lodha, recommended four names for appointment to the Supreme Court: Rohinton Nariman, Arun Mishra, Adarsh Kumar Goel and Gopal Subramanium.

Atul Dev is a staff writer at The Caravan. 

Keywords: Ishrat Jahan judiciary Judicial Appointments NJAC JS Khehar judicial independence