New Delhi, India’s Chief Justice Sanjiv Khanna on Wednesday indicated that the Supreme Court is prepared to re-examine a decade-old constitutional battle over judicial appointments, raising the prospect of a potential revival of the short-lived National Judicial Appointments Commission (NJAC) and the possible demise of the controversial collegium system.
During Constitution Day celebrations at the court’s premises, CJI Khanna orally observed that a fresh public interest litigation seeking to overturn the 2015 judgment that struck down the NJAC would be “considered”. The remark, though informal, is being interpreted as a significant signal from the apex court’s leadership.
The petition, filed by Mumbai-based advocate Mathews J Nedumpara, directly challenges the 2015 Fourth Judges case in which a five-judge Constitution Bench, by a 4-1 majority, declared the 99th Constitutional Amendment and the NJAC Act unconstitutional. That verdict restored the collegium system, under which serving judges effectively choose their own successors to the Supreme Court and the 25 High Courts, with the executive limited to a largely ceremonial role.
Mr Nedumpara’s application contends that the 2015 ruling “substituted the will of the people, as expressed through their elected representatives in Parliament, with the opinion of four judges”. It describes the collegium as “a synonym for nepotism and favouritism” and accuses the system of operating as “a riddle wrapped in a mystery inside an enigma”.
The NJAC, enacted in 2014 with cross-party support during the first Modi government, would have given the Union government equal representation with the judiciary on a six-member commission chaired by the Chief Justice. The panel was also to include the Law Minister and two “eminent persons” nominated jointly by the Prime Minister, the CJI and the Leader of the Opposition.
The 2015 judgment held that the NJAC violated the basic structure doctrine by undermining the independence of the judiciary. The proposed commission was struck down just months after it came into force, before it could make a single appointment.
Successive governments have privately expressed unease with the opacity of the collegium system, but few expected the Supreme Court itself to reopen the issue. Legal circles noted that CJI Khanna’s willingness to list the matter for hearing marks a rare instance of the court contemplating a review of one of its own constitutional precedents.
If the petition gains traction, it could trigger the most consequential restructuring of judicial appointments since the early 1990s, when the Supreme Court, through the Second and Third Judges cases, wrested primacy from the executive in the first place.
The case is likely to be referred to a larger bench, possibly of nine or eleven judges, given its direct challenge to a previous Constitution Bench ruling. For now, the court has only agreed to examine whether the plea is maintainable.
