Cover Story

Judicial assertion

Print edition : November 13, 2015

Mediapersons outside the Supreme Court after the court gave its judgment on the NJAC Act on October 16. Photo: V. SUDERSHAN

S.K. Kaul, Chief Justice of Madras High Court; U.U. Lalit, Supreme Court judge; C.Nagappan, Supreme Court judge; F.M. Ibrahim Kalifulla, Supreme Court judge; J. Chelameswar, Supreme Court judge; D.V. Sadananda Gowda, Union Law and Justice Minister; Manan Kumar Mishra, Bar Council of India Chairman; M.Y. Eqbal, Supreme Court judge; Kurian Joseph, Supreme Court judge; and R. Banumathi, Supreme Court judge; at the golden jubilee celebrations of the Bar Council of India in Chennai on July 24. Photo: M. PRABHU

The Parliament building in New Delhi. Photo: R.V. Moorthy

The Supreme Court strikes down an amendment made by Parliament seeking to dilute judicial primacy in the appointment of judges to the higher judiciary, bringing to the fore the serious trust deficit between the judiciary and the government.

In India’s constitutional history, it is only in a few cases that the Supreme Court has struck down constitutional amendments on the grounds that they damaged or destroyed the basic structure of the Constitution. What distinguishes the Supreme Court’s ruling on October 16 striking down the 99th Constitution Amendment Act, 2014, and the National Judicial Appointment Commission (NJAC) Act, 2014, from its earlier ones is that four members of the five-judge Constitution Bench that delivered the verdict comprehensively articulated the trust deficit between the government and the judiciary while enunciating the legal reasons for its ruling.

Both the 99th Constitution Amendment Act and the NJAC Act were products of peculiar circumstances in the evolution of Indian democracy. Legislation aimed at reforming the appointment of judges by setting up a commission has a long history dating back to 1990. The laws brought forward earlier by coalition governments with uncertain majority support in Parliament could not result in their passage and so lapsed. The Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) came to power in 2014 with a clear majority in the Lok Sabha, and this helped it hasten the passage of the pending legislation with changes considered suitable by the government.

Despite having reservations about the provisions of the Bills, which seemingly conflicted with the principle of the primacy and independence of the judiciary, all political parties in Parliament and in most of the State Assemblies supported them and ensured their passage because they believed in the government’s stated aim of bringing transparency and efficiency in the appointment process.

Thus, the Lok Sabha passed the Bills with 367 members voting in favour and none against. Thirty-seven MPs belonging to the All India Anna Dravida Munnetra Kazhagam (AIADMK) abstained from voting. The Rajya Sabha passed the Bill with 179 members voting in favour. The eminent advocate Ram Jethmalani was the lone member who abstained from voting. Jethmalani, however, was successful as counsel for an intervener in challenging the constitutional validity of the two Acts in the Supreme Court.

After the Amendment Bills were ratified by more than half of the State Assemblies, they duly received the President’s assent on December 31, 2014. The Acts came into force on April 13 this year. The hasty passage of the Bills in Parliament and in the State Assemblies without any serious debate raised doubts about the quality of the will of the people as reflected in these representative bodies. Balaji Srinivasan, counsel for Nagaland in the Supreme Court, resigned his brief in the midst of the hearing of the NJAC case before the Supreme Court in protest against the State Assembly’s resolution supporting the amendment without holding a debate and overruling his advice that it was against the independence of the judiciary. Nagaland’s Advocate General Balagopal also quit around the same time to register his protest against the move.

Legal observers said the criticism that the Supreme Court had gone against “the will of the people” by striking down the two Acts as unconstitutional betrayed a lack of understanding of the duty of a constitutional court while testing the validity of a piece of legislation. The extent of support enjoyed by a piece of legislation during its passage cannot help a court judge its constitutional validity or its compliance with the basic structure requirements laid down by the court in the Keshavananda Bharati case (1973).

Yet, in deference to Parliament’s wisdom, the Supreme Court refused to grant an interim stay on the operation of the two Acts despite pleas by the petitioners who challenged their constitutionality. But the NJAC was a stillborn child, with the Chief Justice of India (CJI) H.L. Dattu refusing to participate in the three-member Selection Committee to select two eminent members for the six-member NJAC. The other two members of the committee were the Prime Minister and the Leader of the single largest party in the Lok Sabha. Justice Dattu had said that he would not participate in the selection until the Constitution Bench set up to hear the petitions challenging the Acts heard and delivered its verdict. The respondents to the petitions had then described Justice Dattu’s action as unconstitutional. He now stands vindicated.

The background

Judges of the Supreme Court and the High Courts are appointed under Articles 124 and 217 respectively. Under Article 124, the President appoints every judge of the Supreme Court after consultation with such of the judges of the Supreme Court and the High Courts as he/she may deem necessary for the purpose. The provisions make it mandatory for the President to consult the CJI for the appointment of judges other than the CJI.

Article 217, on the other hand, makes it mandatory for the President to consult the CJI, the Governor of the State, and in the case of appointment of a judge other than the Chief Justice, the Chief Justices of the respective High Courts.

Additional judges and acting judges for the High Courts are appointed under Articles 224 and 224A. Transfers of High Court judges and Chief Justices of one High Court to another are made under Article 222. The 99th Constitution Amendment Act amended all these provisions and even made consequential changes in other related provisions in order to introduce the NJAC.

Articles 124 and 217, despite what the constitutional text may say, have been understood in the manner they are interpreted and declared by the Supreme Court under Article 141. The court’s interpretation of Articles 124 and 217 emerges principally from the judgments of its three Constitution Benches.

The first judgment was given by a majority of 4:3 by a seven-judge bench in the First Judges case in 1981. This bench had held that the word “consultation” in Articles 124 and 217 did not mean “concurrence” of the CJI, and if there was a disagreement between the President (who acts on the aid and advice of the Union Council of Ministers) and the CJI, the opinion of the former would prevail.

The second judgment was rendered by a nine-judge bench by a 7:2 majority in the Second Judges case in 1993. This bench overruled the judgment in the First Judges case.

In the Third Judges case, decided in 1998, another nine-judge bench reiterated the judgment delivered in the Second Judges case while answering a reference from the President under Article 143 seeking clarifications about the 1993 judgment.

After the judgments in the Second and Third Judges cases, the word “consultation” began to be understood as “concurrence” under Articles 124, 217 and 222, whereas the court had interpreted “consultation” to mean that primacy must rest with the CJI.

The CJI’s opinion to fill the vacancies in the Supreme Court, according to the 1993 judgment, was to be formed through a unanimous recommendation finalised at a meeting of a collegium comprising the CJI and two senior most judges, and this must be conveyed to the government in writing in order to be binding. The 1998 judgment expanded the size of the collegium to the CJI plus four senior most judges of the Supreme Court.

For appointment to the High Courts, the Supreme Court held in the Third Judges case that the CJI should consult two senior most judges of the Supreme Court and those judges of the Supreme Court who have the High Court concerned as their parent High Court or who have occupied the office of a judge or Chief Justice of that High Court on transfer.

The Supreme Court held in the Second Judges case that in exceptional cases the government could refuse to accept a recommendation for appointment after providing strong and cogent reasons to the CJI. But, it said that if the CJI and the other judges of the Supreme Court who had been consulted on the matter unanimously refused to accept the stated reasons and reiterated their recommendation, the government was bound to make the appointment.

In the Third Judges case, the court held that the CJI’s recommendations, without complying with the norms and requirements of the consultation process as stated in the two judgments, were not binding upon the Central government.

The amendment

The 99th Constitution Amendment Act and the NJAC Act introduced drastic changes in the appointment process by replacing the collegium with the six-member NJAC. The NJAC was to consist of the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister, and two eminent persons.

The eminent persons were to be chosen by a three-member selection committee comprising the CJI, the Prime Minister and the Leader of the Opposition or the Leader of the single largest party in the absence of a recognised opposition party in Parliament. The eminent persons were to hold office for a term of three years, while the other members of the NJAC were to be ex-officio.

During the hearing of the case, the government wanted the court to experiment with the NJAC just as it had experimented without a collegium for the first 43 years of the Republic and then with the collegium for the next 22 years. But the majority judges in the Constitution Bench were suspicious of several provisions, which, the petitioners alleged, could be abused by a government which wanted a captive judiciary.

For instance, the Amendment Act does not define the “eminent persons” to be nominated by the selection committee. The government claimed that these eminent persons would have a non-legal background and would be lay persons having no connection with the judiciary and even the profession of advocacy. The bench wondered how such persons could evaluate the suitability of candidates for the posts of judges in the higher judiciary. It did not get a satisfactory answer from the government for this poser.

On the contrary, Maharashtra and Gujarat, through their counsel, differed with the Attorney General, Mukul Rohatgi, on this issue and said the “eminent persons” should be chosen from among eminent lawyers, jurists, and retired judges or the like who have an understanding of the working and functioning of the judicial system. So, the bench struck down Article 124A(1)(d), which was inserted through the amendment for leaving “eminent persons” category in the NJAC vague and undefined.

The next issue of contention was the principle of “special majority” introduced in Section 6(6) of the NJAC Act, by which any two members of the NJAC could reject a recommendation made by others. The bench, including Justice J. Chelameswar who dissented from the majority, feared that the two eminent persons chosen by a committee in which the CJI was in a minority could favour the political class by blocking the recommendations of the three judicial members. K.K. Venugopal, counsel for Madhya Pradesh, agreed with the bench even as the Attorney General tried to allay the bench’s concerns on the matter.

But the response of the bench to this fear of veto by two eminent persons was divided. While the majority found this provision inconsistent with the independence of the judiciary, Justice Chelameswar felt it could be neutralised by insisting that the Supreme Court judges would choose, through secret vote, the two eminent persons from a panel of six names to be recommended by the selection committee. But the question that remained was: what if the CJI was outvoted by the other two members in the selection committee in recommending even the six names?

The bench also found another provision in the Amendment Act seriously flawed. Section 5(1) of the Act required that the NJAC shall recommend for appointment the senior most judge of the Supreme Court as the CJI if he was considered fit to hold the office. The bench noted that the Act carried no definition of “fitness” and the oral explanation of the Attorney General that it meant only mental and physical fitness and nothing else failed to convince the bench.

More than anything else, the inclusion of the Law Minister in the NJAC and the prospect of having to interact with him frequently during meetings appear to have influenced the bench’s decision that the composition of the NJAC militated against judicial independence. Under the collegium system, the “consultation” with the government happened through correspondence and file notings. This was bound to change under the NJAC with face-to-face consultations between the Law Minister and the collegium. The majority judges were rightly concerned whether such interaction would prove to be unhealthy, especially when the government was the biggest litigant before the High Courts and the Supreme Court and many cases involving the distribution of natural resources by the state and scams involving political leaders were before the courts.

The core issue that divided the government from the bench was whether the independence of the judiciary begins after or before the appointment of a judge. The government contended that the independence of a judge has to be safeguarded after his appointment, while the bench believed even the process of appointment must be safeguarded from the influence of the executive.

Trust deficit

More than anything else, a serious lack of trust in the government appears to have forced the majority judges to strike down the Acts as unconstitutional. Justice J.S. Khehar referred to the resignation by 13 State Governors and one Lieutenant Governor of a Union Territory after the NDA came to power in 2014. Saying that each one of them would be eligible for nomination as an ‘eminent person’ in the NJAC, he wondered whether all the resignations were voluntary.

“It would be of utmost importance, therefore, to shield judicial appointments from any political-executive interference to preserve the “independence of the judiciary” from the regime of the spoils system,” he observed. Justice Khehar, to justify his defence of an independent judiciary, quoted senior BJP leader L.K. Advani’s remark that an Emergency-like situation could happen in India.

Justice Madan B. Lokur, for instance, wondered whether a person with a different sexual orientation would be found eligible for judgeship if the political class had an edge over the judiciary in the NJAC. Similarly, he described as tyrannical the likely intention of the government to make appointments without consulting the CJI using the vacuum created by the court’s ruling striking down the two Acts, if the court had not simultaneously restored the collegium. These are strong observations that convey a deep distrust of the political class. The majority judges felt constrained to dwell on the prevailing political situation in the country because it was well settled that while analysing the objectives of an impugned piece of legislation the court was well within its powers to consider the circumstances under which it was enacted to determine its constitutionality.

The court has reiterated the legal position that the primacy of the judiciary in the appointment process is an essential ingredient of the independence of the judiciary, which is the basic feature of the Constitution, and therefore, beyond the realm of amendment by Parliament. But while doing so, it has given vent to its distrust of the political class and the maturity of civil society. In the coming days, India’s democratic institutions will have to display the necessary maturity to overcome the trust deficit.

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