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National Judicial Appointments Commission Judgement Case Analysis (By- Arya Vansh Kamrah)
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National
Judicial Appointments Commission Judgement Case Analysis
Authored By- Arya Vansh Kamrah
(2016) 5 SCC 1
BEFORE THE HON’BLE SUPREME COURT OF
INDIA
(Before Jagdish Singh Khehar,
Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.)
Supreme Court Advocates-on-Record
Association ……Petitioner
Versus
Union of India……………………………………Respondent
Decided on 16.10.2015
CASE FACTS
The government of India enacted two
acts, namely the Constitution (Ninety-Ninth Amendment) Act, 2014 and the
National Judicial Appointments Commission Act, 2014. The direct outcome of the
enactment of the above-mentioned acts was the establishment of the National
Judicial Appointments Commission (NJAC). The NJAC was set up to regulate the
selection and transfer of judges to the Higher Judiciary. The NJAC was proposed
to replace the Collegium (to replace
the existing procedure as mentioned
under Article 124(2) and Article 217(1) of the Indian Constitution). The
proposed NJAC was argued to promote transparency in the process of judicial
appointments. In consonance with the above idea, Articles 124 and 217 of the
Indian Constitution were amended by the Constitution (Ninety-ninth Amendment)
Act, 2014.
Initially, the Supreme Court
Advocates-on-Record Association and many independent parties filed a writ
petition challenging the constitutional validity of the Constitution
(Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments
Commission Act, 2014. The matter was first presented before the three-judge
bench of the Supreme Court of India, which referred the case to the five-judge
Constitution bench.
Issues
1. Whether the new procedure of
appointing and selecting judges for higher judiciary through NJAC in consonance
with the ‘basic structure’ of the Constitution, which fosters Separation of
powers and Judicial Independence?
2. Whether the Constitution (Ninety-Ninth
Amendment) Act, 2014 and the National Judicial Appointments Commission Act,
2014 are constitutionally valid?
3. Whether judicial primacy in
appointment of the judges to the higher judiciary is directly linked to the
judicial independence?
Rules
Involved
The below-mentioned Articles of the
Constitution of India are imperative rules applied in the matter herein
concerned.
1. Article 14 – Equality before the
Law-
The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex
or place of birth.
2. Article 124 - Establishment and
constitution of Supreme Court-
(1) There shall be a Supreme Court of
India constituting of a Chief Justice of India and, until Parliament by law
prescribes a larger number, of not more than seven other Judges.
(2) Every Judge of the Supreme Court
shall be appointed by the President by warrant under his hand and seal after
consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years.
3. Article 217 - Appointment and
conditions of the office of a Judge of a High Court-
(1) Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and,
in the case of appointment of a Judge other than the chief Justice, the chief
Justice of the High court, and shall hold office, in the case of an additional
or acting Judge, as provided in Article 224, and in any other case, until he
attains the age of sixty-two years.
Ratio
The court in a majority decision
(4:1) declared the Constitution (Ninety-Ninth Amendment) Act, 2014 and the
National Judicial Appointments Commission Act, 2014 as unconstitutional and
reinstated the collegium system for appointment of judges in the higher
judiciary.
Analysis
In the matter here-in concerned, the
Indian judiciary was supposed to deal with an imperative subject of judicial
appointments.
The need to strike a balance between
the three organs of the government has been felt since time immemorial. The
‘balance’ in itself is a very subjective notion and various theories have been
propounded to create a balance of
roles and power among such organs. French revolutionary Montesquieu was amongst
the first to do so by proposing “Separation of Powers” theory, which provided
for dispersion of powers between the legislature, executive and judiciary. This
way, he highlighted, each organ can work autonomously and can be more
accountable.[1]
The conflict between the operations
of the legislature, executive and judiciary can be witnessed in early 1960s
when in the case of Sajjan Singh v. State of Rajasthan[2].
In this case the apex court held that Constitutional Amendments can be
ultra-vires to the “basic structure” of the Constitution. Then later, in the
case of Golaknath v. State of Punjab[3],
the Supreme Court restricted the amending powers of the legislative
authorities. Constitutional experts like Granville Austin as the starting point
of rift between the legislature and judiciary in India.[4]
Herein, Justice Subba Rao stated that Article 368 of the Indian Constitution
does not confer any power to the legislature to amend the Constitution but lays
down procedure for amendment. He, moreover, opined that Constitutional
Amendment falls under the ambit of Article 13 and thus under “judicial review”.
Furthermore, in the case of Kesavananda
Bharti v State of Kerala[5], the
judgement in the Golaknath case was overruled and two key inferences were drawn
regarding the same subject. The first one being that the Constitutional
Amendments do not fall under the purview of the Article 13 of the Indian
Constitution. The rationale behind the same is that Constitutional Amendment is
not an ordinary law or statute created by the Parliament and therefore, the
same does not fall under the scope of “law” under Article 13. The second key
inference which the Supreme Court reflected upon in the above matter was that
the Supreme Court may deem any Constitution Amendment as unconstitutional, if
the same is found in violation of the “basic structure” of the Indian
Constitution. Since, this particular dealt extensively with the “basic
structure” doctrine, it
vehemently held that independence of judiciary is a cornerstone of the Indian
Constitution’s basic structure.
In the case of Shamsher Singh v.
State of Punjab[6],
one of the judges of the bench, Justice Krishna Iyer gave a dictum that the
executive should not have a final say on the subjective of judicial
appointments in higher judiciary. He believed that in all matters relating to
the judicial
appointments, the decision of the
Chief Justice of India should be binding on the government.
The discrepancies and inconsistencies
in the matter of judicial appointment and promotion in the higher judiciary
became a focal point of debate in the 1970s. The Supreme Court’s senior-most
judge by convention becomes the Chief Justice of India, but there is no
provision in the Constitution regarding it. This became a point of controversy
when in 1973, on retirement of Justice Sikri, Justice A.N Roy was appointed as
the Chief Justice, superseding three other senior judges, following which the
three judges resigned. A similar incident took place with Justice H.R.Khanna,
who was renowned for his critical judgements on Civil Rights, which often ended
up against the Executive and Legislature’s favour. He gave the also gave the
dissenting judgement in the ADM Jabalpur Case[7]
– against the government, which in the present day falls in line with his
views. He was also superseded by another judge, Justice Beg, following which he
resigned. The followings incident ensued a series of judgements, commonly
referred to as the ‘Judges cases.’
In the First Judges Case[8] it
was held that the final power with regards to appointment of a High Court or a
Supreme Court judge rests with the executive, which implied, the Union
Government and not the Chief Justice of India. This controversial decision was
not accepted by the legal fraternity and was called an impediment to the
judicial independence.
The jurists and legal critiques also
criticised the judgement by pointing out the condescending nature of the executive.
In the Second Judges Case[9],
the judgement in the earlier judgement was reversed. The Supreme Court made it
clear, that although it is necessary for the President of India to appoint the
judges of the Supreme Court and the High Court, the Constitution does require
prior consultation from the Judges of the High Court and the Supreme Court.
Such a consultation, the court opined, is always necessary. The court
interpreted that the process of appointment is initiated by the Chief Justice
of India and the two senior-most judges of the Supreme Court, ordinarily called
the collegium. The Hon’ble court stated that the recommendation of the
collegium is binding upon the President of India and that he cannot veto the
recommendation. He may point out the reason, if he may find,
that the recommended judge is not
suitable for the post, to which the collegium may accept the recommendation or
reinforce their previous recommendation. In such a case, the President is
obliged to accept the collegium’s recommendation.
In the Third Judge Case[10], the
Supreme Court upheld the judgement of Supreme Court Advocates-on-Record
Association v. Union of India, 1993. Moreover, the collegium was expanded to
include the Chief Justice of India and the four senior-most judges of the
Supreme Court.
The above-mentioned judgements have
been heavily relied upon in the case of Supreme Court AOR v UOI. In the present
case Justice Khehar stated that the S.P.Gupta case belittled the importance of
judiciary and its independence and hence was rightly overruled by the second
judges case. He affirmed the standing of the judiciary in the Shamsher Singh
case.
I believe the standing of the Supreme
Court was wrong on this part, since the latter judgement shared only a dictum
on the judicial primacy and the subject matter of the Shamsher Singh was
different, meanwhile the former corresponded completely to the topic of
judicial appointments. After the second and third judges’ case, the Indian
Judicial system clearly hinted out on the judicial primacy in the matters of
appointment, selection, and promotion of judges in the higher judiciary.
Although the Judicial Independence is undeniably an integral feature of the basic structure of the Constitution, the primacy of judiciary in appointments of Supreme Court and High Court Judges has never been substantiated as a vital part of judicial independence. Justice Khehar in the judgement baldly associates Judicial Independence with judiciary’s right to appoint judges in higher judiciary. The claim has not been deliberated upon and no evidence has been put out to reflect that it is core to the basic functionality of the Indian Constitution. Moreover, on comparative analysis one can find that in countries like the US, Australia, Canada and the UK, the executive’s interference in appointment of judges is far greater in extent when compared to India.
To state that any kind of political
interference in the process of judicial appointments would be an impediment to
the independence of the judiciary is an astonishing claim, when majority of the
countries have independent commissions and authorities, with members from the
executive, legislature and the judiciary involved in the process.
Although, in my opinion there are
overt fallacies in the judgement, which one may point, at the same time NJAC
itself was not free from ambiguity. The members of the NJAC were supposed to be
the Chief Justice of India, the next two-senior most judges, the Union Law
Minister and two eminent persons. It is merely stated that the 2 eminent
persons would be appointed by a committee comprising of the Prime Minister,
Chief Justice of India and the Leader of Opposition. The criteria for the
credentials and the qualification of such a person remained ambiguous.
Moreover, such a person was also given the power to veto the decision of the
Chief Justice of India or the President in the matter of judicial appointment,
which could be gravely misused.
CONCLUSION
The present judgement fails to
justify in totality, its standing, on the basis of empirical evidence. The
claim that ‘judicial primacy in appointment of the judges to the higher
judiciary is directly linked to the judicial independence’ was not aptly
justified and its correlation with the ‘basic structure’ of the Indian
Constitution was not presented. It is not indicative, on the face of it, that
Articles 124 and 217 of the Indian Constitution are a component of the ‘basic
structure’ of our Constitution. Thus, the apex court fails to substantiate its
sole authority in such a matter.
On the other hand, the implementation
of the NJAC would have reduced the judicial say in appointments from at-present
5 judges to 3, coupled with the inclusion of an executive member namely the
Union Law Minister and 2 eminent people, with exclusive powers, which could
have imposed a potential threat on the judicial independence.
The judgement can, therefore, be
argued to have maintained the institutional autonomy of the Indian Judiciary.
However, the institutional prerogative of the court is still questionable as
rightly pointed out in the dissenting opinion of Justice Chelameswar, who
questions the accountability of the collegium in the present state of affairs.
Article Information
National Judicial Appointments Commission Judgement Case Analysis (By- Arya Vansh Kamrah)
Authors: Arya Vansh Kamrah
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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