SC Advocates-on-Record Association v. Union of India: how the NJAC was struck down and the collegium restored

The Supreme Court's judgment of 16 October 2015 in Supreme Court Advocates-on-Record Association v. Union of India — reported as (2016) 5 SCC 1 — is the most consequential judicial-independence ruling in the Republic's history. A five-judge Constitution Bench of Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel held, by 4:1, that the Constitution (Ninety-ninth Amendment) Act, 2014 — which had inserted Article 124A into the Constitution to constitute the National Judicial Appointments Commission — and the National Judicial Appointments Commission Act, 2014 were unconstitutional. The majority held that judicial primacy in the appointment of judges is part of the independence of the judiciary, which is part of the basic structure of the Constitution. Justice Chelameswar dissented entirely.

The judgment is doctrinally consequential on three connected propositions. The first is that judicial independence is part of the basic structure of the Constitution. The second is that judicial primacy in the appointment of judges is itself a component of judicial independence — and a constitutional architecture that displaces that primacy in favour of executive-political participation cannot be sustained. The third is that the collegium system — articulated in the Second Judges Case (1993) and refined in the Third Judges Case (1998) — is the operative architecture for judicial appointments, restored to its position as the constitutional mechanism after the NJAC's striking down.

The constitutional architecture

The appointment of judges to the Supreme Court and the High Courts is governed by Articles 124 and 217 of the Constitution. The Articles, as originally drafted, provided for appointment by the President after consultation with such judges of the Supreme Court and the High Courts as the President deemed necessary — with the Chief Justice of India having a primary role in the consultation.

The constitutional architecture had been the subject of three Constitution Bench engagements before NJAC. The First Judges Case (S.P. Gupta v. President of India, 1981) had read the consultation requirement narrowly, treating the President's discretion as substantially controlling. The Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993) had reversed that position, holding that the Chief Justice's role was primary and that the appointment power must, on the constitutional architecture, rest substantially with the judiciary. The Third Judges Case (1998) had elaborated the architecture, articulating the collegium system as the operative mechanism.

The collegium system had operated since 1993. The collegium for Supreme Court appointments comprised the Chief Justice and the four senior-most judges; for High Court appointments, the Chief Justice and the two senior-most judges. The recommendations of the collegium had, on the constitutional architecture, been binding on the executive: the President, in making appointments, was required to act on the basis of the collegium's recommendations.

The collegium system had been the subject of institutional critique. The critique engaged with the architecture's opacity, with the lack of substantive accountability for the appointment process, and with the institutional risks that the closed architecture had been said to produce. Parliament had, in 2014, responded to the critique by enacting the constitutional and statutory architecture that the NJAC represented.

The Ninety-ninth Amendment and the NJAC Act

The Constitution (Ninety-ninth Amendment) Act, 2014 had inserted Article 124A into the Constitution, constituting the National Judicial Appointments Commission. The Commission, on the constitutional text, comprised the Chief Justice of India (as Chairperson), the two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two "eminent persons" to be nominated by a committee consisting of the Prime Minister, the Chief Justice, and the Leader of the Opposition in the Lok Sabha. The Commission's recommendations were to be the basis on which the President made appointments to the higher judiciary.

The National Judicial Appointments Commission Act, 2014 had supplied the operational architecture. The Act provided for the procedural mechanism by which the Commission would discharge its functions, including the role of the Union Government in the appointment process, the procedure for nomination by the Commission, and the consequences of disagreement among the members.

The architecture had been substantially contested at the political-historical level. The amendment had been passed unanimously by Parliament and had been ratified by the requisite number of State Legislatures — making it, in formal terms, the most broadly supported constitutional amendment of the post-Independence period. The constitutional challenge to the architecture came almost immediately on its operationalisation.

The constitutional challenge

The petitioners — including Supreme Court Advocates-on-Record Association as the lead petitioner — challenged the constitutional validity of the Ninety-ninth Amendment and the NJAC Act. The challenge rested on the basic structure doctrine.

The substantive proposition the challenge advanced was that judicial independence is part of the basic structure of the Constitution. The doctrinal architecture that Kesavananda Bharati and the subsequent line had developed had recognised the basic structure as a constitutional limit on Parliament's amending power; the challenge contended that judicial independence — and, within it, judicial primacy in the appointment process — was part of that basic structure.

The challenge also contended that the architecture of the NJAC — including the participation of the Union Minister of Law and Justice, the inclusion of two "eminent persons" with substantial nomination influence, and the operational architecture that gave the Union Government substantial control over the appointment process — produced a diminution of judicial primacy that the basic structure doctrine could not sustain.

The majority position

The Bench, by 4:1, accepted the principal propositions. Justices Khehar, Lokur, Joseph and Goel formed the majority. The reasoning, taken across the majority opinions, rests on three connected propositions.

Judicial independence as basic structure. The majority held that judicial independence is part of the basic structure of the Constitution. The doctrinal frame engaged with the constitutional design of the higher judiciary — its role in protecting Fundamental Rights, in enforcing the constitutional architecture, and in checking the political branches — and located the institutional independence of the judiciary as the structural condition for that role.

Judicial primacy in appointments. The majority held that judicial primacy in the appointment process is a component of judicial independence. The reasoning rested on the proposition that the institutional character of a judiciary is shaped substantially by who is appointed to it; if the appointment process is substantially controlled by the political branches, the independence of the judiciary — at the institutional level — is compromised. Judicial primacy in the appointment process operates as a structural condition for institutional independence.

The NJAC architecture's deficiency. The majority held that the NJAC architecture displaced judicial primacy. The participation of the Union Minister of Law and Justice as a member, and the architecture by which two "eminent persons" could be nominated by a committee that included the Prime Minister, produced a Commission in which the judiciary's voice could be outvoted on appointments. The architecture was, on the majority's reading, irreconcilable with judicial primacy and therefore with the basic structure doctrine.

The result was the striking down of the Ninety-ninth Amendment and the NJAC Act. The collegium system — restored as the operative architecture — has continued to operate since.

The Chelameswar dissent

Justice Chelameswar dissented entirely. The dissent's principal propositions are doctrinally important and have been the subject of substantial post-NJAC commentary.

The dissent held that judicial primacy in the appointment process is not part of the basic structure of the Constitution. The constitutional text — Articles 124 and 217 — does not articulate judicial primacy; the primacy was a doctrinal contribution of the Second Judges Case. A doctrinal contribution of that kind cannot, on the dissent's reading, be elevated to a constitutional limit on Parliament's amending power.

The dissent also engaged with the substantive critique of the collegium architecture. The dissent's view was that the collegium had produced institutional risks of opacity, of unaccountability, and of perpetuating institutional pathologies. The NJAC architecture, on the dissent's reading, was a legitimate institutional response to these risks — and was within Parliament's amending competence to enact.

The Chelameswar dissent has been one of the most engaged dissents of the recent period. The doctrinal frame it articulates — that the collegium architecture's institutional pathologies justify legislative reform, and that judicial primacy is doctrinally contestable as a basic-structure component — operates as the principal articulation of the case against the NJAC majority.

The Memorandum of Procedure question

A connected and unresolved element of the post-NJAC arc is the Memorandum of Procedure. The Court, in its post-NJAC engagement with the institutional architecture of the collegium, had directed that a Memorandum of Procedure be drafted by the Union Government in consultation with the Chief Justice — operationalising the collegium architecture with procedural protections including transparency, eligibility criteria, and a substantive review process.

The Memorandum of Procedure has been the subject of substantial back-and-forth between the executive and the judiciary across the post-2015 period. A draft was circulated; differences emerged on certain clauses, including the national-security clause that the Union Government had proposed; the Memorandum has not, at the time of writing, been finalised in the form the post-NJAC engagement had contemplated.

The unfinished state of the Memorandum is, on most assessments, a significant institutional gap in the post-NJAC architecture. The collegium continues to operate under the pre-NJAC procedural frame, supplemented by such institutional refinements as the Court has, in the years since, articulated.

What the judgment did not decide

Three limits should be flagged.

First, the judgment did not articulate the substantive content of judicial primacy in detail. The doctrinal frame is that primacy is part of judicial independence; the substantive content — including the institutional role of the executive in the appointment process, the procedural architecture for consultation, and the limits of the executive's discretion — has been engaged with in the post-NJAC institutional practice.

Second, the judgment did not foreclose all legislative engagement with judicial appointments. The doctrinal frame is that the architecture must preserve judicial primacy; an architecture that does so — even if it differs in design from the collegium — would, on a future engagement, be open to constitutional sustenance.

Third, the judgment did not resolve all the institutional questions on the collegium architecture itself. The doctrinal frame was that the architecture would, on the constitutional position, continue to operate; the institutional refinements that the collegium would adopt in the post-NJAC period have been engaged with case by case.

The doctrinal arc

NJAC sits at the apex of the judicial-independence line in Indian constitutional jurisprudence.

The line includes the First, Second and Third Judges Cases — which had developed the institutional architecture for judicial appointments. It includes the basic structure line — Kesavananda Bharati (1973), Minerva Mills (1980), S.R. Bommai (1994), I.R. Coelho (2007) — within which judicial independence has been progressively articulated. It includes the broader engagement with the separation of powers in Indian constitutional jurisprudence.

The post-NJAC line — including the engagement with the Memorandum of Procedure and the substantive institutional development of the collegium architecture — operates within the doctrinal frame the judgment has established. The collegium remains the operative architecture; the procedural development continues.

What practitioners take from the judgment today

For constitutional litigators, NJAC is the foundational authority on judicial independence as basic structure. Any future engagement with the appointment architecture engages the doctrinal frame the judgment has established.

For the broader constitutional bar, the judgment is the most engaged contemporary articulation of the basic structure doctrine in the post-Coelho period. The doctrinal architecture — that institutional features of the constitutional design can be recognised as part of the basic structure and that constitutional amendments displacing those features are open to invalidation — has applications beyond the judicial-independence context.

For the institutional engagement with judicial appointments, the judgment supplies the doctrinal constraint within which institutional reform must proceed. The Memorandum of Procedure question — and the broader institutional questions on transparency and accountability in the appointment process — operate within the doctrinal architecture the judgment has set.

Related editorial pieces

• Kesavananda Bharati v. State of Kerala: the basic structure doctrine
• Minerva Mills v. Union of India: limits on the amending power and the harmony doctrine
• I.R. Coelho v. State of Tamil Nadu: the Ninth Schedule and basic structure scrutiny
• S.R. Bommai v. Union of India: Article 356, judicial review, and secularism as basic structure
• Anoop Baranwal v. Union of India: the appointment of Election Commissioners