AConstitution Bench of the Supreme Court—by a majority of 4:1— has declared the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) and the National Judicial Appointments Commission (NJAC) Act, 2014 “unconstitutional”. Each judge rendered individual opinions on issues of recusal, reference of the matter to a larger Bench for reconsideration of the Second Judges’ (1993) and Third Judges’ (1998) Cases, and the decision on merits. Given the discontent with the collegium system, it was only reasonable to expect the apex court’s verdict to put to rest certain thorny issues relating to judicial appointments. Except, the verdict raises more questions than it answers.
The majority rejected the NJAC for its insufficiency to preserve the primacy of the judiciary in the matter of appointment of judges to the higher judiciary. The judgment held primacy to be part of the basic structure of the Constitution. Justice Khehar categorically asserted that independence of the judiciary as a basic feature is violated when primacy of the judiciary in the matter of appointments is breached. Justice Goel issued a caveat of sorts that if primacy is not considered to be part of the basic structure, Parliament may be free to confer the said power (in the matter of appointments) on the Executive or the Legislature, which would compromise judicial independence.
However, the basis for the SC’s pronouncement remains doubtful and devoid of an explanatory analysis. The Second and Third Judges’ Cases say that the term “consultation” used in Articles 124, 217 and 222 of the Constitution has to be read as vesting primacy in the judiciary, but does not elevate primacy to basic structure. The principle of primacy, and the context of its use, warranted a detailed discussion in the Second Judges’ Case, not much of which has been analysed by the majority in this judgment. The majority freely conflates judicial independence with primacy of judicial opinion, which then becomes the basic structure. Judicial independence is undoubtedly part of basic structure while primacy has been held to be part of independence. However, the link between primacy and basic structure remains conspicuous by its absence. Since the striking down of the 99th Amendment and the NJAC Act is premised on the principle of primacy, an unclouded exposition of primacy as basic structure is sorely missed. The majority’s formulation on primacy appears insufficiently reasoned despite the undeniably lengthy verdict!
Apprehensions regarding the untoward consequences of the presence of the law minister and two eminent persons on the NJAC also loomed large in the judgment. The law minister’s presence raises the possibility of “structured bargaining” between the judiciary and the executive, which the SC consciously nipped in the bud. The majority also came down heavily on the presence of eminent persons, expressing concern over the nominating authority exercising a “free will” while choosing them, due to the absence of any prescribed qualifications for their appointment. Justice Khehar snubbed the attorney-general’s submission on the significance of their participation in the appointments process as “a submission with all loose ends, and no clear meaning.” The sources of the majority’s discomfort were Sections 5(2) and 6(6) of the NJAC Act, which allows two members of the NJAC to veto a proposed candidature for judicial appointment. The likelihood of the law minister along with an eminent person, or both the eminent persons stalling an appointment which would otherwise fall in favour with the judges did not pass muster with the majority.
All possible permutations were also put to test while asserting that the Chief Justice would be a “mere voting statistic” and “just another number” in the six-member NJAC for not having a casting vote, signalling a dilution of his role in the appointments process. These suppositions out-dare an established principle of law, that the mere possibility of the abuse of power by an authority cannot be sufficient to deny the vesting of power in that authority. The SC took the presumption of abuse of power by non-judicial members so critically that it used it as a substitute for sophisticated constitutional argument to oppose their inclusion in the NJAC. Why does the majority not suppose that the Chief Justice and the other two Judges would vote en bloc to sail through or block an appointment? If suppositions are to be employed as valid arguments, they should apply against everyone.
Cumulatively, these conjectures hint at a prevailing sentiment of distrust towards the inclusion of any other entity in the appointments process, which becomes apparent when eminent persons are termed “outsiders” by Justice Goel. There is a wider conceptual gap between what the NJAC proposed to do and what judges perceive the appointments process to be, palpable from a seemingly trivial observation from within the judgment. Justice Lokur affirmatively observes the expansion of the collegium from two senior-most judges (in the Second Judges’ Case) to four senior-most judges (in the Third Judges’ Case) as broad-basing of the consultation with the Chief Justice of India.
This flows from an established pattern of judicial thinking where multiplicity of judicial voices is conflated with plurality of opinion, considering the contribution of other branches as violative of judicial independence. On the other hand, a broad-based appointments system, as envisaged by the NJAC, was marked by plurality of opinion and admittedly a more democratic set-up.
The Bench acknowledges the frailties of the collegium system while declaring it to be operative. Justice Chelameswar, in his strong note of dissent, makes references to problematic appointments made by different collegiums while Justice Joseph expresses anguish over the lack of transparency and accountability. Even with such expressions of discontent, the judgment unwittingly appears like a balance sheet of executive aberrations in judicial appointments on one side, and judicial aberrations on the other. Justice Khehar’s pointed reference to the attorney-general finding fault with three improper appointments (since 1993) when numerous other proper ones have been made displays a constrained response towards a larger systemic problem. In fact, Justice Lokur seems to sum up the collective sentiments of the majority when he opines that nothing more than “better institutionalisation and fine tuning” of the scheme of appointments laid down in the Second and Third Judges’ Cases is required. The key takeaway then remains that despite its faults, the collegium stays, subject to certain improvements.
The Bench parted with the order by listing the matter for November 3 to consider appropriate measures for an improved working of the collegium system. One hopes that the judges were as forthcoming and conciliatory while authoring this judgment by not wholly omitting to read down any of the impugned provisions. To parrot only one conception of judicial independence, which insulates the judiciary from other branches in the manner of appointments serves neither the ends of the judiciary nor the litigants. Independence is as much about public confidence in the judiciary and scepticism about the manner of appointments (which undoubtedly prevails in current times) does no good to anyone. The appointments system NJAC proposed would now only be spoken of for what it could have been.
The author is research fellow, Vidhi Centre for Legal Policy