UPSC GS Paper II: Judiciary, NJAC Case, Collegium System, Judicial Appointments

Must?Know

• Article 124(2) – President appoints Supreme Court judges after consultation with SC judges; interpreted in Second Judges Case (1993) to mean "concurrence", establishing primacy of judiciary in appointments.
• Article 217 – High Court judges appointed by President after consultation with CJI, Governor, and HC Chief Justice; collegium recommends names.
• Collegium system – evolved through three Judges Cases: S.P. Gupta (1981), Second Judges Case (1993), Third Judges Case (1998); not mentioned in Constitution.
• S.P. Gupta v. Union of India (1981) – held that executive has equal role in judicial appointments; later overruled by 1993 verdict.
• Second Judges Case (1993) – SC overruled S.P. Gupta; "consultation" under Articles 124 and 217 means "concurrence"; established collegium system.
• Third Judges Case (1998) – expanded collegium to include CJI and four senior-most SC judges for SC appointments; for HC judges, CJI and four senior SC judges.
• NJAC Act, 2014 – passed by Parliament and ratified by 16 states; created National Judicial Appointments Commission under 99th Constitutional Amendment.
• NJAC composition – CJI (chairperson), two senior SC judges, Union Law Minister, two "eminent persons" nominated by committee (CJI + PM + LoP).
• 99th Constitutional Amendment Act, 2014 – inserted Article 124A (NJAC), Article 124B (functions), and Article 124C (empowering Parliament to regulate NJAC).
• Supreme Court struck down 99th Amendment and NJAC Act in Supreme Court Advocates-on-Record Association v. Union of India (2015) – 4:1 majority.
• NJAC judgment (2015) – held that NJAC violates "independence of judiciary", a basic structure of the Constitution; thus, unconstitutional.
• Justice J.S. Khehar (later CJI) authored the lead opinion in NJAC case, emphasizing threat to judicial independence from executive and political influence.
• "Memorandum of Procedure" (MoP) – governs appointment process post-NJAC verdict; revised multiple times between government and collegium.
• Collegium recommends names for SC judges to President; government may seek clarification or return file, but if collegium reiterates, appointment must follow.
• As of 2023, over 400 vacancies in subordinate judiciary across states; High Courts also face significant vacancies affecting pendency.
• Transfer of High Court judges – under Article 222; done by President after consultation with CJI; collegium decides transfers.
• Law Commission of India (14th Report, 1958) – first recommended a Judicial Service Commission for appointments.
• National Court of Appeals – proposed in NJAC debate to reduce SC’s appellate burden; not yet established.
• "Eminent persons" in NJAC – to be nominated for three-year term; one to be from SC/ST/OBC/minority/women; aimed at diversity but criticized for lack of transparency.
• NJAC case reaffirmed basic structure doctrine from Kesavananda Bharati (1973); judicial independence is part of basic structure.
• Collegium system criticized for lack of transparency, no eligibility criteria, and exclusion of executive and civil society.
• Government must clear appointments within four weeks of collegium’s recommendation; delays have led to public interest litigations.
• In 2021, CJI N.V. Ramana highlighted that 38% of district judges in some states were appointed through direct recruitment, not promotion, affecting morale.
• NJAC verdict emphasized that no one outside judiciary or executive should have veto power, but inclusion of Law Minister and eminent persons risked politicization.
• Article 50 – Directive Principles of State Policy; calls for separation of judiciary from executive; used in NJAC judgment to support judicial independence.

Difficulty Level

Hard – requires understanding of evolving jurisprudence, constitutional amendments, and interplay between judiciary and executive; frequently tested in mains and prelims with nuanced questions.

Common UPSC Traps

Trap: NJAC was struck down because it included the Law Minister – Fact: NJAC was invalidated because the collective structure allowed non-judicial members to veto appointments, threatening judicial independence (NJAC judgment, 2015).
Trap: Collegium system is mentioned in the Constitution – Fact: Collegium system is a judicial innovation from the Second and Third Judges Cases; not in the original or amended Constitution.
Trap: 99th Amendment inserted Article 124(2) – Fact: 99th Amendment inserted Article 124A (NJAC), while Article 124(2) existed since 1950 and was modified by the amendment before being struck down.
Trap: President appoints judges on advice of Prime Minister – Fact: President appoints judges on recommendation of collegium; executive (MoL&J) plays a consultative role, not decisional.
Trap: NJAC replaced the collegium system permanently – Fact: NJAC was invalidated in 2015; collegium system was restored as the method for judicial appointments.

Practice MCQs

Question: The National Judicial Appointments Commission (NJAC) was established through which Constitutional Amendment?
A) 98th Amendment Act
B) 99th Amendment Act
C) 100th Amendment Act
D) 101st Amendment Act
Answer: B
Explanation: NJAC was established via the 99th Constitutional Amendment Act, 2014, which inserted Article 124A.
Why others fail: 101st Amendment relates to GST, a common confusion due to proximity in amendment numbers.

Question: In which case did the Supreme Court first lay down that "consultation" with CJI means "concurrence" in judicial appointments?
A) S.P. Gupta v. Union of India
B) Kesavananda Bharati v. State of Kerala
C) Supreme Court Advocates-on-Record Association v. Union of India
D) Supreme Court Advocates-on-Record Association v. Union of India (1993)
Answer: D
Explanation: The Second Judges Case (1993) ruled that "consultation" means "concurrence", giving primacy to the judiciary in appointments.
Why others fail: S.P. Gupta (1981) held consultation does not mean concurrence, making it the opposite of the correct answer.

Question: Which of the following is NOT part of the current collegium system for Supreme Court appointments?
A) Chief Justice of India
B) Four senior-most judges of the Supreme Court
C) Union Law Minister
D) Recommendations sent to President after collegium approval
Answer: C
Explanation: Union Law Minister is not part of the collegium; appointments are made by President based on collegium’s recommendation without executive veto.
Why others fail: NJAC included Law Minister, leading to confusion that the executive is still involved in decision-making.

Question: Article 50 of the Indian Constitution deals with:
A) Appointment of Chief Justice of India
B) Separation of judiciary from executive
C) Tenure of High Court judges
D) Power of Parliament to amend the Constitution
Answer: B
Explanation: Article 50 is a Directive Principle calling for separation of judiciary from executive; cited in NJAC judgment to uphold judicial independence.
Why others fail: Article 124 deals with SC appointments, often confused with Article 50 due to thematic overlap.

Question: The 'Memorandum of Procedure' is related to:
A) Transfer of High Court judges under Article 222
B) Guidelines for declaring national emergency
C) Framework for judicial appointments after NJAC verdict
D) Procedure for impeachment of judges
Answer: C
Explanation: MoP outlines the process for judicial appointments, revised after NJAC judgment to define roles of government and collegium.
Why others fail: Transfer of judges (Article 222) involves collegium but is governed separately from MoP, causing confusion.

Last?Minute Revision

• NJAC struck down in 2015 – basic structure doctrine applied.
• Collegium system not in Constitution – judicial creation via Second Judges Case (1993).
• 99th Amendment Act, 2014 – introduced NJAC.
• Article 124A – inserted by 99th Amendment; struck down in 2015.
• S.P. Gupta case – 1981 – executive primacy in appointments.
• Second Judges Case – 1993 – judicial primacy; "consultation" = "concurrence".
• Third Judges Case – 1998 – collegium expanded to 5-member body.
• NJAC composition: CJI, 2 SC judges, Law Minister, 2 eminent persons.
• Supreme Court Advocates-on-Record Association v. Union of India – 2015 – NJAC invalid.
• Basic structure doctrine – Kesavananda Bharati (1973) – applied in NJAC case.
• Article 50 – DPSP – separation of judiciary from executive.
• President appoints SC judges under Article 124(2).
• President appoints HC judges under Article 217.
• Transfer of HC judges – Article 222.
• Law Commission 14th Report – 1958 – recommended Judicial Service Commission.
• Government can seek reconsideration of collegium decision but must appoint if reiterated.
• MoP – Memorandum of Procedure – governs appointment process post-NJAC.
• CJI J.S. Khehar – authored lead opinion in NJAC case.
• No eligibility criteria for "eminent persons" in NJAC – criticized.
• Collegium system lacks transparency – major criticism.
• NJAC required two of six members to object to veto appointment – threat to independence.
• 4:1 majority in NJAC verdict – majority upheld collegium.
• NJAC would have replaced Articles 124(2) and 217 – now restored.
• 2023 – over 400 subordinate judiciary vacancies in India.
• Verify from standard source: exact number of pending appointments as of 2024.