Amid questions around the independence of the judiciary, after the alleged discovery of a large amount of cash from a room damaged by fire on the premises of Delhi high court Justice Yashwant Varma’s official residence, for the second time in four days, Vice President and Rajya Sabha chairman Jagdeep Dhankhar has referred to the National Judicial Appointments Commission (NJAC) Act. Calling it a “historic development” which had it come into force “things would have been different”, Dhankhar also said that there is no provision of judicial review of a constitutional amendment.
“Keeping in mind dignity, in 2015 this House made a law. That constitutional structure that emanated unanimously with one abstention from the parliament, endorsed by state legislatures, should be the Rule of Law. Because it was certified by the President by appending signatures under Article 111. Now is the befitting occasion for all of us to reiterate that,” said Dhankhar in the Rajya Sabha on Tuesday (March 25).
He added, “Because that was a visionary step endorsed by parliament. Imagine if that had taken place things would have been different. Honourable members of parliament I seek your suggestion on a very important point. What emanated from the Indian parliament with a historic development with rare convergence of unity since independence found acceptance by the state legislatures. We need to reflect what happened to that.”
Months after the Narendra Modi government first came to power in 2014, the NJAC Act, was brought in to replace the collegium system for the appointments in the higher judiciary, and was passed unanimously by both houses of parliament (with one abstention in the Rajya Sabha) in 2014 and then endorsed by the state legislatures. However, it was struck down by the Supreme Court the following year, as “unconstitutional”.
The NJAC included six members – the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Union law minister and two “eminent” persons nominated by a committee comprising the CJI, Prime Minister and the Leader of the Opposition. Any two members of the NJAC could veto a recommendation.
While striking down the law as unconstitutional, a five judge bench of the Supreme Court had cited insulation of judges from other organs of the government.
“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench said in his individual judgment.
Dhankhar said that there is no provision for review of a constitutional amendment.
“Under the Constitution, there is no provision that allows anyone to tinker with that. There is no constitutional provision for review or appeal of a constitutional amendment. If there is legislation in the country by Parliament or state, judicial review can take place on the anvil whether there is conformity with constitutional provisions,” he said.
Dhankhar said that now there were two options, one was the NJAC that was passed by parliament, endorsed by state legislatures and signed by the President and the “second is a judicial order.”
“Now we are at crossroads. I strongly urge members to reflect, there can be no breach by any institution on what emanated from parliament endorsed by legislatures and that should again be the mechanism holding the field,” he said.
Dhankhar’s remarks came in the House in reference to the alleged discovery of a large amount of cash at Justice Verma’s residence last week. On Monday, Dhankhar met the leader of the House and union minister J.P. Nadda and leader of opposition and Congress MP Mallikarjun Kharge on the issue and also decided to meet the floor leaders of all parties in the Rajya Sabha.
Dhankhar’s reference to the NJAC was the second in four days. Earlier on Friday (March 21), when Justice Verma issue was raised in the Rajya Sabha by Congress MP Jairam Ramesh, Dhankhar again without naming the NJAC said that it had “dealt with the malaise”.
Again calling it a historic legislation, Dhankhar said it was “endorsed by this Parliament with unprecedented consensual support unknown to parliamentary history of this country dealt with the malaise very severely”.
“If the malaise had been dealt with perhaps we would not have countenanced such kind of issues. What bothers me is that the incident happened and did not immediately surface,” he had said.
While the alleged discovery of cash is being probed, Dhankhar’s comments has added to speculation that the NJAC may be brought back. On Monday, speaking in the Lok Sabha during the discussion on The Finance Bill, 2025, TMC MP Mahua Moitra referred to Dhankhar’s comments, and said that the government is creating an environment to bring its control over judicial appointments.
“The veracity of the incident is still being assessed but the godi media has gone to town debating whether appointment of judges and how the government of the day must have a preponderant say, in the appointment process,” said Moitra.
Without naming Dhankhar, Moitra said that he had made it clear that the government should do away with the collegium system.
“Mark my words, just like the Election Commission has been emasculated by the government takeover of its appointments process, this brouhaha and media plants are the beginning of an effort to bring back something like the NJAC with complete government control and do away with the Collegium system,” she said.
In 2022, after then Union law minister Kiren Rijiju’s continued criticism of the collegium system, the Supreme Court suggested that the government is perhaps holding back some appointments because it is “not happy” that the top court struck down the NJAC.
