The drama around the National Judicial Appointments Commission – India’s new system to appoint judges in the Supreme Court and high courts – shows no signs of calming down. A five-judge bench of the apex court is in the midst of assessing the constitutional validity of the NJAC law, which was passed by the central government in 2014 but is still opposed by a section of the judiciary.

On Tuesday, the face-off between the government and the judiciary took yet another turn, when the five-judge bench led by Justice JS Khehar firmly turned down the government’s plea to transfer the case to a larger, 11-judge bench. The centre, meanwhile, has accused Chief Justice of India HL Dattu of creating a vacuum in the new appointments system by refusing to participate in the NJAC while the case examining it is still pending in the Supreme Court.

The National Judicial Appointments Commission has been controversial for the past year because it is set to replace the two decade-old collegiums system of making judicial appointments that gave the judiciary almost complete powers over the executive in hand-picking judges for senior positions. Collegiums, however, emerged in 1993 in response to an older system that vested most powers for judicial appointments in the executive.

The history of the collegium system – which, technically, has no constitutional validity – is as important to understanding the current controversy as it is complex. Here is a flashback for the uninitiated.

What is the collegium system?
A collegium is a group of five of the senior-most judges of the Supreme Court – including the Chief Justice of India – who decide the appointments and transfers of judges to the apex court and the high courts. The Constitution of India, however, does not sanction this system.

Article 124 of the Constitution stipulates that judicial appointments to the Supreme Court must be made by the President in consultation with the CJI and other senior judges of the SC and the high courts. Similarly, Article 217 says that high court judges are to be appointed by the President, the CJI and the governor of the concerned state.

This balance between the executive and the judiciary began to see-saw after 1981, when the first of the legendary “Three Judges Cases” on judicial appointment systems took place. In that first case, the Supreme Court had ruled that the CJI’s recommendations of judges could be refused if the president had “cogent reasons”. This tipped the scales in favour of the executive, giving it a greater say in the appointments of judges.

The second of the three cases concluded in 1993, when a nine-judge SC bench that included Justice JS Verma overturned the 1981 judgement. The bench ruled that the Chief Justice of India must have a “primal” role in the appointments of judges and that the executive could not have an equal say, or else it could lead to “indiscipline” in the judiciary.

This verdict led to dissent and confusion within the judiciary, but it also gave birth to the collegium system, which was further reinforced by the third of the “Three Judges Cases” in 1998. This judgement came through another nine-judge bench, which emphasised the judiciary’s upper hand over the executive in judicial appointments.

What is the National Judicial Appointments Commission system?
A growing dissatisfaction with the collegium system, which completely pushed aside the President and the government in the process of appointing top-ranking judges, eventually led to the proposal of a National Judicial Appointments Commission as a more balanced alternative in line with the Constitution.

Collegiums, all through their existence, had been accused of favouritism and corruption of failing to fill in the many vacancies of judges in the Supreme Court and high courts – which was adding to the huge backlog of unheard cases in Indian courts.

The NJAC, on the other hand, was proposed as a body that would comprise the CJI (as the chairperson), two senior SC judges, the union minister of law and justice and two other eminent persons nominated by the Chief Justice, the prime minister and the leader of the opposition (or the leader of the single largest opposition party). Collectively, they would represent both the executive and the judiciary while selecting judges for top appointments.

The National Judicial Appointments Commission Act was swiftly passed by both houses of Parliament in August 2014, and was given the President’s nod in December 2014. By April 2015, the NJAC Act was notified along with the Ninety-Ninth Constitutional (Amendment) Act, which amended Article 124 A of the Constitution to accommodate the Commission.

While the NJAC Act was being passed, however, opposition to the new system began piling up in the Supreme Court in the form of protest petitions, which are now being heard by the five-judge bench under Justice Khehar.

A split judiciary

The NJAC Act was passed enthusiastically not just by the centre but also by 20 state assemblies, but the response amongst members of the judiciary has been divided, with many judges accusing the NJAC system of diminishing the role of the judiciary while allowing politicians to have a say.

In August, outgoing Chief Justice RM Lodha claimed that the collegium system had not failed and that those opposing it were trying to “malign the judiciary”. In contrast, retired judge and Press Council chairman Markandey Katju had called the collegium system a failure last July, and even made allegations against three former Supreme Court chief justices, accusing them of bowing to political pressure to help a certain corrupt additional judge in the Madras high court in power.

The Bar Association of India has pointed out, in its petition to the Supreme Court, that the collegium system was not a transparent one, but it does not support the presence of the executive in any kind of judicial appointments commission.

Senior SC lawyer Fali Nariman has, meanwhile, spoken out against the NJAC system on the grounds that it would give the executive the final say in judicial appointments, whereas the final word ought to come from judges themselves.