India's National Judicial Appointments Commission: A Constitutional History and Current Debate.does India need a National Judicial appointment Commission the 99th amendment of the Constitution of India which was introduced and done in 2014 amended some important articles of the Constitution of India and the NJAC was created the NJAC meant the National Judicial appointment Commission consisting of the Chief Justice of India two seniormost judges of the Supreme Court the law minister and two eminent persons to be nominated by the President of India after consultation with Supreme Court leader of opposition etc so for a brief period that NJAC came into existence in 2014 subsequently that was challenged for violating the basic structure of the Constitution of India so the petitioner alleged that the NJAC had violated the independence of judiciary that that is a basic structure of the Constitution of India and in October 2015 that 99th amendment was struck down by a five judge bench of Supreme Court so it means that NJAC was held to be unconstitutional so NJAC had no any effect even today we don't have any NJAC to recommend the names of advocates or judges to be appointed as a judge of Supreme Court and also the judge of High Courts various High Courts but since NJAC was gone now the power of appointment again reverted to the collegium system though technically the President of India is the appointing authority so if you read article 124 of the Constitution its languages are clear that article 124 and 214 of the Constitution of India provide that the President of India after consultation with Chief Justice and other judge can appoint Supreme Court judge and same procedure is followed in case of High Court judges appointment so that have been going on so normally if we read the entire constitutional history of India then you will find that in 50s 60s and 70s normally the Chief Justice recommended the names of High Court judges and and and seniormost advocates of the Supreme Court and they were appointed by the President of India so we seldom saw any conflicts between the President and the judiciary but that changed in 70s when Indira Gandhi became the Prime Minister of India especially after the pronouncement of that Keshavananda Bharati case the seniormost judges were superseded and Justice A N Rai who was fifth in rank of seniority was appointed as a Chief Justice of India in this respect I am telling you that Justice A N Rai delivered a dissenting judgment in the famous case of Bank Nationalization case and though it is a popular name basically that case was known as in 1970 that was decided and Justice A N Rai was the only judge who upheld that Bank Nationalization scheme the exact name of that case was RC Cooper versus Union of India again in 1973 in the Keshavananda Bharati case Justice A N Rai delivered judgment that sided with the government of India that means he refused to recognize any basic structure of the Constitution according to him each and every part of the Constitution can be amended and by following that procedure though in 1975 he applied the basic structure doctrine to strike down the 39th amendment of the Constitution so in 70s we saw that everything had changed and Justice HR Khanna was also superseded in 19 76 for his greatest dissenting judgment in that infamous case of Habeas Corpus case the real name of that case is Shivkant Shukla versus Union of India but that case is popularly known as the Habeas Corpus case so in 1981 the Supreme Court delivered its longest judgment ever that SP Gupta's case where Supreme Court I think in nine judge bench was constituted and the nine judge bench held that the President had to consult the Chief Justice of India and other judges for the appointment of Supreme Court and High Court judges but the recommendation of Supreme Court were not obligatory the President may accept their recommendation or may disregards but the President of India had to mention the reasons here President of India means the government of India so we all know that in parliamentary form of government it is a cabinet that hold the real power and they exercise all the powers in the name of President of India so in SP Gupta's case the balance of power shifted in favor of the executive and executive was appointing the judges though the executive consulted the Supreme Court judges in the Chief Justice of India but in 80s we did not have any major conflict between executive and judiciary as far as appointment of judges were concerned but in 1993 the Supreme Court of India created the collegium system at that time the collegium was consisted of Chief Justice of India and two other seniormost judges but that judgment gave primacy to the Chief Justice of India it was a Chief Justice of India who was made the sole and most powerful authority of the appointment process of judges so his recommendation were made binding so that means the Supreme Court of India very widely interpreted the constitutional provision again in 1999 in a in a presidential reference case the Supreme Court expounded that collegium system and the collegium system because of that judgment is now consisting of Chief Justice of India and four other seniormost judge and that the collegium has the power to appoint and to recommend the President of India the transfer of judges and also the appointment process of judges the collegium system actually created the balance in favor of judiciary that means the judiciary became the primary institution to appoint Supreme Court and High Court judges so now because of that judgment the collegium system is still going on in 2014 the government of India attempted to create that NJAC but because of Supreme Court judgment that NJAC had gone now NJAC has no relevance but technically if you read the Constitution you will still find that there is a National Judicial appointment commission but because of Supreme Court judgment the NJAC was struck down but in recent time we saw that on many occasions the Supreme Court and government of India came into loggerheads so sometimes Supreme Court recommends the names of particular advocate or judges of High Courts to be appointed as a judge of Supreme Court but the government of India again send back their names for collegium's reconsideration and we saw that collegiums did not send their names back again to the government and such thing was going on and more than it the collegium system is not transparent we don't know how the collegium system functions how they nominate they select the persons to be appointed as future Supreme Court judge what is the procedure did they discuss that means they maintain confidentiality we have no ideas about collegium system that was the collegium system is severely criticized so now we all know that though collegium system is still performing its functions but until and unless the judgments are to be overruled that collegium system will be function that is the constitutional principle so the main criticism against the collegium system is that it lacks transparency recently we saw that Justice Nagarthana of Supreme Court descended with four other judges when the collegium system recommended a judge of Rajasthan High Court who was transferred to Patna High Court and once his name was recommended that he be appointed as judge of Supreme Court Justice Nagarthana disagreed she actually gave a dissenting note so after that dissenting note so in legal field so many jurist have been criticizing that collegium system and there is another major drawback of collegium system is that that the collegium system I mean the four judges and Chief Justice on many occasions they were accused of nominating selecting their favorite advocates as a judge of Supreme Court and High Court so for example that recently retired Chief Justice of India Rabushan Ramakrishna Gavai nominated I mean recommended the names of one judge to be appointed as a Supreme Court judge and later we came to know that the Madras sorry not Madras the Bombay High Court collegium recommended his nephew to be appointed as the judge of Bombay High Court so that was criticized his action was criticized now present Chief Justice of India Justice Chand has agreed to reconsider the collegium judgment that is a good step I hope that the judge collegium system I mean those judgment shall be reconsidered and I wish that Supreme Court will revive the National Judicial appointment Commission but there must be some changes there must be at least seven nine or 11 members Commission

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[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: A K Gopalan v The State(1950,S.C.R.88) was a momentous case in the Constitutional history of India.Any discussion/ lecture on the Constitutional law is incomplete without first examining this case, whether critically or analytically.This case was decided at a time When the Country got independence from British rule and The Constitution of India had come into force,and more than it , for the first timea chapter on Fundamental Rights had been incorporated in the Constitution .The Supreme Court got a golden opportunity to interpret the Article 19,21 and 22 expansively against Executive or legislative power of the state.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: Brief Fact of the case-A K Gopalan,a radical leftist of the Madras Province was detained under the Preventive Detention Act ,1950,and in fact he was detained for several times under the Act.Under Entry 9 of Union list ,the Parliament has the power to enact law on Preventive Detention.Though Preventive Detention is an anathema in modern time,it was justified as a necessary evil to protect the unity and integrity of the state.Even in Britain and America it was used only during the war time ,that too against suspected enemy aliens[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: A K Gopalan filed a habeas Corpus writ petition under Article 32 of the Constitution and challenged the detention ordering a wide ground that the Detention Act ,under which he was detained was void for violating Articles 19 and 21 and also on a narrow ground that it did comply with the requirements of Article 22.Article 22 prescribes certain procedural safeguards against it.Learned Counsel M K Nambiyar on behalf of Gopalan contended that the Detention Act 1959 violated Article 21 and was void on following grounds1.Personal liberty included the freedoms conferred by Article 19(1)(a) to (e) and (g) and the impunged act ( detention act) did not satisfy the test of Article 19(2) to (6).2.The Preventive Detention Act directly violated Gopalans right to move freely , because the freedom of movement is of essence of personal liberty.3.Article 19 (1) and 21 should be read together because Article 19 dealt with substantive rights and Article 21 dealt with procedural rights.4.The reference in Article 21 to Procedure established by law meant due process of law and the Act did not satisfy the requirements of due process of law.5.The word law in Article 21 meant not the state made law but jus naturale ,of the principles of natural justice.The law did not comply with the requirements of Natural justice[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: It will be seen that from 1 to 5 that the proposition that Article 21 applied to the Preventive Detention ,was the foundation of all the reasons,and learned Attorney General M C Seetlevad countered by contending that Article 22 was a complete code and Article 21 didnot apply to Preventive Detention law.All the questions raised some points of immense Constitutional importance and a Six Judge Bench comprising CJI H L J Kania ,Justices P .Shastri ,M C Mahajan,B K Mukherjee ,SS Das and Fazl Ali S was constituted to hear the matters .All the six judges delivered separate judgments after a lengthy hearings .Five learned judges( Fazl Ali dissenting) held that Article 19 did not apply to Preventive Detention thought the freedoms as a result of detention freedoms may be curtailed.Fazl Ali dissented and held that Preventive Detention was a direct infringement of Article 19 and was subject to Judicial review even it was narrowly construed The majority judges did not hold that Article 22 was a complete code ,so they disagreed with learned Attorney General contention and only M C Mahajan alone held Article 22 was a complete code on Preventive Detention.Fazl Ali dissented by holding that " No calamitous or untoward result would follow even if the Provisions of Penal code became justiciable".CJI Kania, and Justices Shastri, Mukherjee and SS Das held the concept of right to move freely throughout the territory of India was entirely different from the Concept of the right to personal liberty.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: Except Justice M C Mahajan who held that Article 22 was a complete code, majority held that Articles 19 (1) and Article 21 did not operate in the same field, because Article 18 conferred rights only one citizens, article 21 conferred rights on all persons. 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Our founding fathers were well aware of its abuse by American judges during the New Deal period.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: So in this case, different views were expressed by different judges, so no common points emerged on the correlation of articles 19 to 20,21 and 22 or the meaning of the expression personal liberty.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: But Justice Fazl Ali dissenting points are regarded as one of the greatest dissents of all time. Justice R Nariman paid a rich tribute to Fazl Ali foresight by saying "simply takes our breath away".

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