"It is disturbing that the apex court was comfortable that judicial independence would be safe in the collegium system," Justice Shah said, observing that the constitution bench didn't offer any real alternative while striking down the NJAC.

Justice Shah questioned the third judges' case of 1998 which became the basis for the collegium system assuming primacy in appointment of judges to the higher judiciary. "The judgment in the third judges' case lacked any detailed textual or normative reasoning, and read more like a policy brief. There was no safeguard against arbitrariness, no mechanism to gather data, and no criteria for selection. The system was ad hoc and shrouded in secrecy," he said.

He recalled how the collegium led by Justice M M Punchhi as CJI in January 1998 gave the government an ultimatum to appoint all judges recommended by his collegium after the government rejected some names. 
"This led to the Special Reference No.1 of 1998, also known as the third judges' case , which held that consultation would mean consent of the CJI. The decision presumed that the primacy of the CJI was an established position of law, but provided no reason for this presumption," Justice Shah said.