Collegium vs NJAC: Balancing Transparency and Constitutional Security

Introduction

The process of appointing judges is central to the independence, integrity, and efficiency of the judiciary. In India, the Collegium system, evolved through judicial precedents, currently governs the appointment and transfer of judges in the higher judiciary. However, this system has been criticized for opacity and lack of accountability. To reform this, Parliament introduced the National Judicial Appointments Commission (NJAC) through a constitutional amendment in 2014. But in 2015, the Supreme Court struck it down as unconstitutional, reviving the debate: How can India ensure transparency in judicial appointments without compromising constitutional security and independence?

Understanding the Collegium System

The Collegium System is a judicially evolved process where appointments and transfers of judges to the High Courts and Supreme Court are made by a group of senior judges led by the Chief Justice of India (CJI).

Key Features:

No mention in the Constitution; evolved through Second Judges Case (1993) and Third Judges Case (1998).
For SC appointments: CJI + 4 senior-most judges.
For HC appointments: CJI + 2 senior-most SC judges + concerned HC CJ and senior judges.

Criticisms:

Opaque and non-accountable.
No formal selection criteria or records of deliberation.
Allegations of nepotism, favouritism, and inconsistency.

The NJAC Framework

The 121st Constitutional Amendment Act, 2014, created Article 124A, establishing the NJAC as a replacement for the collegium. It also passed the NJAC Act, 2014, detailing its functioning.

Composition of NJAC:

Chief Justice of India (Chairperson)
Two senior-most Supreme Court Judges
Union Law Minister
Two eminent persons (nominated by PM, CJI, and Leader of Opposition)

Objectives:

To make the appointment process transparent.
Include executive and public representation.
Reduce judicial monopoly in judge selection.

Supreme Court Strikes Down NJAC (2015 Judgment)

In Supreme Court Advocates-on-Record Association v. Union of India (2015), a 5-judge bench struck down NJAC by 4:1 majority, holding it unconstitutional.

Key Reasons:

Violation of Judicial Independence:
Inclusion of executive members (Law Minister) and eminent persons was seen as threatening judicial autonomy.
Basic Structure Doctrine:
Judicial independence is part of the basic structure of the Constitution and cannot be diluted.
Lack of Safeguards:
No clear criteria for selecting “eminent persons”, which could politicize appointments.

Why Transparency is Needed

Public trust in the judiciary depends on the perception of fairness in appointments.
Several allegations of nepotism and favoritism have been made against the collegium.
No formal merit-based selection process or defined eligibility criteria.
Citizens are entitled to know how judges are selected in a democracy.

Why Constitutional Security is Critical

Judiciary must be free from political and executive pressure.
The executive’s inclusion in appointments could compromise judicial impartiality.
In several countries, politicized judicial appointments have led to decline in rule of law.
The “basic structure doctrine”, laid down in Kesavananda Bharati case (1973), makes judicial independence non-negotiable.

Way Forward: Balancing Both Values

1. Reforming the Collegium System from Within

Publish reasons for selection/rejection of candidates.
Set up objective criteria for evaluation (merit, integrity, diversity, etc.).
Maintain records of deliberations and allow limited public scrutiny.

2. Introducing Transparency Without Compromising Independence

Include a permanent secretariat for judicial appointments under collegium.
Introduce an Independent Screening Committee with judges only.
Allow civil society feedback but not direct participation in appointments.

3. Revisit NJAC with Better Safeguards

NJAC idea is not wrong, but its design was flawed.
A revised NJAC could include:
- Retired judges or constitutional experts instead of political nominees.
- Clear eligibility and selection criteria for “eminent persons”.
- Ensure veto powers do not lie with the executive.

Comparative Perspective

UK: Appointments made by Judicial Appointments Commission, independent of executive.
USA: Executive nominates, but appointments require Senate confirmation—often politicized.
Canada: Judicial appointments committee with merit-based and consultative approach.

India must find a middle path that protects constitutional values, while ensuring efficiency and transparency.

Conclusion

The Collegium vs NJAC debate is not just about systems—it reflects the fundamental tension between judicial independence and democratic accountability. While the collegium ensures security from executive control, it lacks transparency. NJAC aimed to correct that but compromised independence. The ideal solution lies in a reformed, transparent collegium or a redesigned NJAC that balances both concerns. In a democracy, trust in the judiciary depends not only on the decisions it makes but also on how its members are chosen.