Published On: 24th November 2025
Author: Bharat Bhushan & Co-author: Neha Saini
Maharshi Dayanand University Centre for Professional and Allied Studies, Gurugram
Court- The Supreme Court of India.[ii]
Date- 16th October, 2015.[iii]
Citation- Civil Original Jurisdiction Writ Petition (Civil) No. 13 of 2015.[iv]
Bench– Justice (s) Anil R. Dave, J. Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh Kumar Goel.[v]
INTRODUCTION
Parties Involved-
Supreme Court Advocates-on-Record-Association and another … Petitioner(s)[vi]
versus
Union of India … Respondent(s)[vii]
One of the most important developments in Indian Constitutional history is the Independence of Judiciary and Separation of powers. Both the Independence of the Judiciary and Separation of powers are very critical points of discussion from their very beginning. The concepts of Independence of the Judiciary and Separation of Powers revolve around various aspects such as Appointments, Transfers, Salaries, Allowances and Retirement etc. of Judges in the Higher Judiciary.
Procedural History
The Collegium system and the Independence of the Judiciary are both different sides of the same coin. The collegium system was introduced in the year 1993[viii] which evolved from the ruling of the Supreme Court of India instead of a law by a Parliament or by a constitutional provision.
The concept has undergone various stages of development
Union of India vs Sankal Chand Seth, 1977[ix]
Issue Raised- Whether President of India have the power to interfere in the transfer of High Courts Judges?[x]
Judgement- In this case, the Supreme Court held that the President of India has the power to differ from the advice provided by consultants in regard to the transfer of the Judge from one High Court to another High Court.[xi]
S P Gupta vs Union of India, 1981[xii]
This case is also well known as the First Judge Case. With a majority of 5:2, the Supreme Court held that the PRIMACY of the Chief Justice of India’s recommendations on any appointment of Judges of the Supreme Court and High Courts can be refused based on of COGENT REASONS.[xiii]
After this case, Executive primacy is more influential over the Judiciary in the appointment of judges in the Higher Judiciary.
Second Judge Case, 1993[xiv]
In this case, the Supreme Court of India introduced the collegium system and held that the CONSULTATION really meant CONSURRENCE.[xv]
In addition, it was not the Chief Justice of India’s individual opinion but an institutional office formed in consultation with the two Senior-most Judges in the Supreme Court.
Third Judge Case, 1998[xvi]
In this case, the Supreme Court on the President’s request under article 143 of the Indian Constitution,[xvii] has increased the collegium to five members body comprising the Chief Justice of India and four of his senior most colleagues.[xviii]
FACTS
Steps were taken in the year 2014 in the form of bringing the very act NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 and 99th Constitutional Amendment Act, 2014 which were passed by both houses of Parliament and also received the President’s assent. Both were brought to seek to make appointments and transfers of judges in the Higher Judiciary more transparent and transferable. It was the need of time to enact the two-decade-old procedure- the Collegium System.[xix]
As every coin has two sides, same with this act, some have vehemently supported the enactment of this act but on the other hand, some have opposed it in the case of SUPREME COURT AOR and ANR. vs UNION of INDIA, 2015. Consequently, which struck down by the Supreme Court in the judgement of the same case.[xx]
ISSUES RAISED
- Whether the NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 and 99th Constitutional Amendment Act, 2014 violate the principle of Separation of Powers and Independence of Judiciary?[xxi]
- Whether the NATIONAL JUDICIAL APPOINTMENT COMMISSION ACT, 2014 and 99th Constitutional Amendment Act, 2014 were constitutionally valid?[xxii]
- Whether Chief Justice of India have PRIMACY in the appointment and transfer of judges in the Higher Judiciary?[xxiii]
Petitioner’s Contentions: Here are the main contentions presented by the petitioners:
Constitutional Validity of the National Judicial Appointments Commission (NJAC):
The petitioners argued that the NJAC Act, which sought to replace the Collegium System with a new mechanism involving the Executive, Legislature, and Judiciary, was unconstitutional.
They contended that the NJAC Act violated the basic structure of the Constitution, particularly the independence of the judiciary, which is a fundamental principle of the Constitution.
Independence of the Judiciary:
The petitioners emphasized that the Collegium System was a judicial innovation to ensure the independence of the judiciary. They argued that any attempt to alter or replace this system would undermine judicial independence.
They claimed that the NJAC would give excessive power to the Executive, which could lead to political influence in judicial appointments and thus compromise the impartiality of the judiciary.
Past Precedents and Judicial Interpretation:
The petitioners referenced previous judgments and the development of the Collegium System through judicial decisions, arguing that the Supreme Court had consistently upheld the system as a mechanism to safeguard judicial independence.
They claimed that the introduction of the NJAC was inconsistent with these precedents and judicial interpretations.
Transparency and Accountability:
While the NJAC was purported to enhance transparency and accountability in the appointment process, the petitioners argued that the Collegium System already provided adequate safeguards for transparency and accountability through its functioning and decisions.
The Supreme Court, in its judgment delivered on October 16, 2015, ultimately upheld the constitutionality of the NJAC Act and the National Judicial Commission, declaring it unconstitutional. The Court reaffirmed the primacy of the Collegium System for judicial appointments, emphasizing that the independence of the judiciary is a basic structure of the Constitution.
Respondent’s Contentions: Here’s a summary of their contentions:
Constitutional Amendment and NJAC’s Legitimacy:
The respondents argued that the NJAC Act was a legitimate constitutional amendment passed by Parliament and ratified by a majority of states. They contended that the Act, which sought to introduce a new mechanism for judicial appointments, was within the powers of the legislature to amend the Constitution and address issues in the existing appointment process.
Enhancing Transparency and Accountability:
They asserted that the NJAC was designed to enhance transparency and accountability in the judicial appointment process. Unlike the Collegium System, which was seen as opaque and prone to criticisms of lack of transparency, the NJAC involved representatives from both the executive and legislature, aiming to provide a more inclusive and transparent process.
Checks and Balances:
The respondents emphasized that the NJAC was intended to balance the power between the judiciary and the other branches of government. They argued that involving the executive and legislative branches in the appointment process would provide necessary checks and balances, thereby ensuring that appointments were not solely influenced by the judiciary.
Addressing Issues with the Collegium System:
They highlighted various criticisms of the Collegium System, including concerns about its lack of transparency, accountability, and potential for internal bias. The respondents contended that the NJAC was introduced to address these shortcomings and improve the overall effectiveness of the judicial appointment process.
Judicial Independence and the NJAC Framework:
While acknowledging the importance of judicial independence, the respondents argued that the NJAC framework was designed to preserve this principle while also incorporating mechanisms to prevent potential conflicts of interest and ensure a broader representation in the appointment process.
In essence, the respondents argued that the NJAC was a constitutional and progressive reform aimed at improving the judicial appointment process by making it more transparent and accountable, while still maintaining the independence of the judiciary.
RELEVANT LAWS
This case not only revolved around one law but it accompanied by various provisions.
- 99th Amendment Act and the Constitutional provisions- While deciding this case the Supreme Court in its ruling had struck down the various provisions of the Constitution such as Article 124A,[xxiv] 124B,[xxv][xxvi]
- National Judicial Appointment Commission Act,2014- The case was filed in opposition to this act mainly. Later in the decision of this case, the Supreme Court struck down this Act completely because this act was unconstitutional and opposed the principles of Independence of Judiciary and Separation of Powers.[xxvii]
DECISION
Court’s Rulings and Outcomes:
Constitutionality of the NJAC Act: The Supreme Court found that the NJAC Act, which sought to replace the Collegium System with a new mechanism involving the executive and legislative branches in judicial appointments, was unconstitutional. The Court determined that the NJAC Act violated the Constitution’s basic structure doctrine, particularly the principle of judicial independence.[xxviii]
Preservation of the Collegium System:
The Court upheld the Collegium System as the method for appointing judges to the Supreme Court and High Courts. It reaffirmed that the Collegium System, despite criticisms, was a necessary component of maintaining the independence of the judiciary. The Collegium System allows for a significant role of the judiciary in its own appointments, thus safeguarding against external influence.[xxix]
Basic Structure Doctrine:
The ruling reinforced the basic structure doctrine of the Constitution, which holds that certain fundamental principles, such as the independence of the judiciary, cannot be altered or infringed upon by amendments. The Court concluded that the NJAC Act, by involving the executive and legislature in the appointment process, encroached upon this basic structure.[xxx]
Judicial Independence:
The Court emphasized that the independence of the judiciary is a core principle of the Constitution, essential for the functioning of a democratic society. It held that the NJAC’s involvement of non-judicial entities in the appointment process threatened this independence by potentially allowing political considerations to influence judicial appointments.[xxxi]
Role of the Constitution (Ninety-Ninth Amendment) Act, 2014:
The Court also reviewed the Constitution (Ninety-Ninth Amendment) Act, which sought to facilitate the NJAC. It found that this amendment was not in harmony with the fundamental principles of the Constitution and thus could not stand in light of its impact on judicial independence.[xxxii]
SIGNIFICANCE
What if NJAC Would Even Continue Today?[xxxiii]
Now it became very hard to say what would be the situation today if the National Judicial Appointment Commission, 2014 and 99th Amendment Act, 2014 continued.
Some opined that, the executive would have a major role than the judiciary itself in the process of appointment and transfers of judges of the Supreme Court and the High Courts and also undermine the belief of the Independence of the Judiciary and Separation of Powers.
In the 2nd Judge Case, SC held that the PRIMACY of CJI as a Basic Structure of the Indian Constitution, however, the NJAC violated the basic structure and decreased the powers of CJI.[xxxiv]
As per Article 124 C[xxxv] of the Indian Constitution the parliament had the power to regulate the procedure for the appointment of Judges in the Supreme Court and the High courts, which clearly depicted as PARLIAMENTARY DICTATORSHIPS.
Another CRITICISM is that, article 124A[xxxvi] of the Indian Constitution provided that NJAC has 2 eminent to be nominated for the process of appointment of Judges in the Higher Judiciary, but the lacuna was that the criteria for the nominations of these 2 eminent persons were opaque and controversial.
In summary, the Supreme Court’s decision in this case upheld the Collegium System and struck down the NJAC Act as unconstitutional,[xxxvii] reinforcing the principle that the independence of the judiciary is a fundamental aspect of the Constitution that must be preserved.
References
[i] WRIT PETITION (CIVIL) NO. 13 OF 2015
[iii] https://indiankanoon.org
[iv] AIR 2016 SC 117 at 1/ https://main.sci.gov.in/judgment/judis/43070.pdf
[v] AIR 2016 SC 117 para 5 at 5/ https://main.sci.gov.in/judgment/judis/43070.pdf
[vi] AIR 2016 SC 117 at 1/ https://main.sci.gov.in/judgment/judis/43070.pdf
[vii] AIR 2016 SC 117 at 1/ https://main.sci.gov.in/judgment/judis/43070.pdf
[viii] AIR 1994 SC 268
[ix] 1977 AIR SC 2328
[xii] AIR 1982 SC 149
[xiii] https://indiankanoon.org
[xiv] AIR 1994 SC 268
[xvi] 1998(7) SCC 739
[xvii] The Constitution of India
[xviii] 1998(7) SCC 739
[xix] https://blog.ipleaders.in
[xx] AIR 2016 SC 117/ https://main.sci.gov.in/judgment/judis/43070.pdf
[xxi] https://theamikusqriae.com
[xxii] https://privacylibrary.ccgnlud.org
[xxiii] AIR 2016 SC 117 para 3 at 53/ https://main.sci.gov.in/judgment/judis/43070.pdf
[xxiv] The Constitution of India
[xxv] The Constitution of India
[xxvi] The Constitution of India
[xxvii] AIR 2016 SC 117/ https://main.sci.gov.in/judgment/judis/43070.pdf
[xxviii] https://indiankanoon.org
[xxix] https://indiankanoon.org
[xxx] https://indiankanoon.org
[xxxi] https://indiankanoon.org
[xxxii] AIR 2016 SC 117/ https://main.sci.gov.in/judgment/judis/43070.pdf
[xxxiv] AIR 1994 SC 268
[xxxv] The Constitution of India
[xxxvi] Article 124A(d) of The Constitution of India
[xxxvii] AIR 2016 SC 117/ https://main.sci.gov.in/judgment/judis/43070.pdf
