The observation by the Constitution Bench of the Supreme Court, which is presently hearing the petition challenging the National Judicial Appointments Commission Act and the Constitution Amendment Act, that the collegium system was good but its implementation was bad is the subject of much speculation in government circles. There is apprehension that the court may even strike down the two enactments on the ground that judicial primacy in the appointment of judges has been done away with.
The judgment lays down the following propositions: (a) Judicial independence extends also to the stage of appointment of judges. It is not enough to have security of tenure, salary, pension, and so on ; (b) Selection of judges is a participatory, consultative, constitutional function performed by high constitutional functionaries whose objective is to pick the best persons for the higher levels of judiciary; (c) In this exercise, no one is higher or lower than the other; (d) normally a judge should be selected through a process of consensus. In case that is not possible, more weightage should be given to the opinion of the Chief Justice because he or she is the expert who can judge the competence of the candidate better. This is necessary to avoid a stalemate and also to avoid an incompetent person with political backing getting through.
Thus, the primacy of the executive was replaced by the primacy of the Chief Justice. This was done after making the following observations: "It is obvious that the provision for consultation with the Chief Justice was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate and his suitability for appointment as a superior judge.Ö At the same time, the phraseology used indicated that giving absolute discretion or the power to veto to the Chief Justice of India as an individual in the matter of appointment was not considered desirable (by the framers of the Constitution) so there should remain some power with the executive to be exercised as a check whenever necessary."
The Constitution Amendment Act and the NJAC Act can be struck down only on the ground that these enactments violate the basic structure, namely judicial independence.