Aditya Bhave, Savitribai Phule Pune University
Harshita Yadav, University of Petroleum & Energy Studies, Dehradun
Varun Hinge, Institute of Law, Nirma University
After the KeshavanandaBharati and the A.D.M. Jabalpur Cases, High Courts and the Supreme Court of India came under immense pressure. The supersession of three senior most Supreme Court judges and promotion of judges of her choice in various High Courts and the Supreme Court of India was only the beginning; Mrs. Indira Gandhi resorted to punishing the judges whom she considered disobedient and inconvenient. In the first step she resorted to the forced transfer of judges from one High Court to another and that too from one corner of the country to another.
During the Emergency, on the pretext of achieving national integration, 16 High Court judges were transferred just in one go. These were the judges from nine High Courts who had previously given the judgments contrary to the Supreme Court in A.D.M Jabalpur Case. This mass transfer took place in 1976. These judges belonged to nine High Courts which had upheld the Fundamental Rights of persons detained during the Emergency. These judges were transferred for one corner of the country to another from their original high courts, without their consent and overriding their objections. Sixteen High Court judges, who were transferred, were not guilty of any misbehaviour or wrong-doing. On the contrary they had performed their constitutional duties with utmost sincerity, and had only delivered judgments which were not to the liking of the Government of the day. In his characteristic style, H.M. Seervai writes, “The sixteen judges were transferred not for doing anything wrong but for doing right to all manners of people according to the Constitution and the laws.” These judges had ruled that the detention of leaders like Morarji Desai, Atal Behari Vajpayee, L.K. Advani, Madhu Dandvate, Sham Nandan Mishra and many others under the MISA during the emergency was illegal.
In many cases, judges, initially appointed for two years’ probation before their confirmation in High Courts, were not continued because their judgments were not seen in favourable light by the Government. The intent of the Government was also reflected in its decision to prohibit all newspapers from publishing the names of the transferred judges or any discussion over it. A further threat to the judges was indicated by the Government by deliberately leaking the names of 40 High Court judges as being under consideration for transfer. This was the most blatant attempt to threaten and control the higher judiciary. During the emergency a large number of Additional Judges in various High Courts were denied routine extensions or confirmations. These judges were mostly those who had ruled against the unlawful detention of ordinary citizens during the Emergency. The list included Mr. R.N. Agrawal, Additional Judge of Delhi High Court, who had ordered the release of Kuldip Nayar from preventive detention. In 1980, when Congress returned to power, five High Court Chief Justices were retired without being confirmed. Additional Judges were being given extensions or given appointments only at the last moments and were made to fill in several very demeaning undertakings.
Dealing with the transfer case during the Emergency and the Government’s pretext that this was a step towards innovative method of national integration, Justice Y.V. Chandrachud observed (indeed only after the end of Emergency and the defeat of Mrs. Gandhi) that, “There are numerous other ways of achieving national integration more effectively than by transferring High Court Judges from one High Court to another considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose. If at all, on mature and objective appraisal of the situation, it is still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object can be more easily and effectively attained by making appointments of outsiders initially”.
What is a Collegium System?
A forum which decides on appointments and transfers of judges
Comprises of the Chief Justice of India and the four senior-most judges of the Supreme Court
It is born from ‘Three judgescases’ which gave primacy to the Chief Justice of India’s call on appointments or transfers; the President merely approves the CJI’s choice.
Judiciary gets greater say than the executive on the appointments or transfers of judges.
The system was evolved through Supreme Court judgments in the Three Judges Cases dated October 28, 1998
· The head of the collegium of Supreme Court is the Chief Justice of India along with the 4 senior most judges of Supreme Court. The head of the collegium of High Court is its Chief Justice and other 4 senior most judges. The names for appointment in High Courts are first approved by the CJI before the names reaches the government.
· Currently the Collegium of Supreme Court consists of:
Sharad Arvind Bobde (CJI)
N. V. Ramana (Judge)
Arun Kumar Mishra (Judge)
Rohinton Fali Nariman (Judge)
Working of Collegium System
The collegium and the central government send the names of the lawyers or judges to each other. The central government does the fact checking of the names sent by the collegium also the collegium considers the names sent by the central government and resends the file to the government for the approval. The government needs to give its assent to the names that are resend by the collegium. But there is no time limit for the reply to the collegium and it takes a long time in appointment of judges. Over 400 out of total 1079 judges’ post are vacant in high courts. The collegiums of various high courts have not recommended any names for filling up 221 of their vacancies. This means the collegiums does not recommend the names on time.
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
It was established by amending the Constitution (99th Amendment) passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14, 2014.
The Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions.
Both Bills were ratified by 16 state legislatures and the President gave his assent on December 31, 2014.
The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Composition of NJAC
It consists of six people – the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’.
These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of Opposition in the Lok Sabha, and are not eligible for re-nomination.
By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade old collegium system of judges appointing judges in higher judiciary.
What was the Contention?
The contention was on two ‘eminent persons’ in the NJAC panel.
One of the eminent persons nominated should be from Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.
The two eminent persons to be nominated for a period of three years and no re-nomination allowed.
Nomination of two eminent persons to be finalised by a panel comprising the Prime Minister, Chief Justice of India and the Leader of Opposition.
According to Section 5 of the NJAC Act, if two members disagree with the recommendation, the Commission can’t make that recommendation.
The petitioners say, the two nominated members can veto a decision of the NJAC and thus the government will control the NJAC’s decisions.
A simplistic understanding might make the collegium system look rather opaque, especially because only judiciary has the power to select future judges. However, this is also a way to make judiciary independent of politics. Having been kept outside of the legislature and executive, the system is believed to keep selection of future judges free from outside interference.Constitution says, the executive is empowered to appoint judges in consultation with the judiciary. But in 1993, the Supreme Court created a collegium and empowered judges to appoint judges; the government could raise objections if it wanted, but the collegium could still go ahead, the report says.The National Judicial Appointments Commission Act was “against the basic features of our Constitution”, though the collegium system is not entirely flawless, a Zee News report said, quoting top lawyers and legal experts. The Constitutional validity of NJAC was challenged by several bodies and groups on the ground that it might dilute the independence of the judiciary by giving the government and the political class a substantial say in the process of appointments, said Prashant Bhushan in an article for Livelaw.
One of the main concerns regarding NJAC was the involvement of government in the council. The main ground on which the Supreme Court made its judgment was that by giving the government a substantial say in the appointment of judges, NJAC might compromise the independence of the judiciary.
 .GranuvilleAustine, 1999, Working A Democratic Constitution, p.344.  S.P. Gupta vs. President of India And Ors. AIR 1982 SC 149, 1981 Supp (1).  Y.V. Chandrachud, in Union of India v. SankalchandHimatlal Seth and others 1978 (1) SCR 423 https://en.wikipedia.org/wiki/Supreme_Court_of_India Not just govt, judiciary also to blame for mounting judge vacancies in high courts, The Print, 21 January 2020  Supreme Court Advocates on Account v. Union of India (1993) 4 SCC 441  Justice, J.S. Khehar, in the majority Judgement in NJAC;4 SCC,437-58.