There is complete unanimity that the independence of the judiciary is an essential ingredient of the basic feature of the Constitution and must be preserved as it is sacrosanct. There is a divergence of views on how this can be achieved/maintained—by the collegium system, an institutional system (National Judicial Appointments Commission) or by a totally independent body?
In its judgment of October 16, 2015, the Supreme Court, by a majority of 4:1, held that the Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, are unconstitutional as they compromise the independence of the judiciary, and the primacy of the judiciary in the appointment of judges was restored. At the same time, the Court is looking at strengthening the existing collegium system and it has invited stakeholders to give suggestions to make the collegium transparent and effective so that the selection of judges is on merit.
However, the real issue is not who has the last word in the appointment of judges, but who the right persons are to be selected for appointment as judges. In the turf war between the executive and the judiciary, this vital aspect has been lost sight of. Neither the NJAC nor the collegium system laid down clear and concrete criteria on ‘eligibility’ for appointment in higher judiciary. The focus must remain on the ‘candidate’, their knowledge of law, professional experience, past performance and, above all, their suitability. The level of scrutiny of a candidate must be put in the public domain so that it is open, fair and transparent.
The starting point in the standoff between the judiciary and the executive started with the Supreme Court judgment in the SP Gupta case (December 30, 1981) or the ‘First Judges case’, in which the Court declared that the ‘primacy’ of the Chief Justice of India’s recommendation on judicial appointments and transfers can be refused for ‘cogent reasons’. This ruling gave the executive primacy over the judiciary in judicial appointments for the next 12 years.
In the Second Judges case, the Supreme Court held that the judiciary must be given primacy, which led to the setting up of the collegium system. In the collegium system, the CJI and four other senior-most judges of the Supreme Court decide on appointments to the higher judiciary.
In 1998, President KR Narayanan issued a presidential reference to the Supreme Court as to what the term ‘consultation’ really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. In this context, the Court held that the CJI must take into account the views of a ‘plurality’ of judges before making decisions on appointments. The Third Judges case cemented the supremacy of the judiciary in the appointment and transfer of judges.
In 2008, the report of the Law Commission pointed out that, in other countries, the executive either has sole authority to appoint judges or it appoints judges in consultation with the chief justice. As the Second Judges case had completely eliminated the role of the executive, the report said, “It is time the original balance of power is restored.”
On August 11, 2014, the government introduced the National Judicial Appointments Commission Bill in the Lok Sabha. The Bill scrapped the collegium system and a commission (NJAC), which would include the members of Parliament, would appoint judges. On August 13, 2014, it was passed in the Lok Sabha and, the next day, it was passed in the Rajya Sabha. On January 1 this year, the President gave his assent to the Bill.
The amendment by which Article 124A was introduced was declared unconstitutional by the Supreme Court in the NJAC judgment. First, the presence and involvement of the law minister representing the executive seems to have tipped the scale. Second, Article 124C empowered Parliament to change/amend the structure of NJAC through the ordinary law-making process. This was a violation of the theory of separation of powers and gave the legislative pillar ‘unprecedented powers’.
On the other side, while defending the formation of NJAC, the government’s stand was that since the NJAC amended the Constitution, the Second Judges case that created the collegium was irrelevant as the Constitution was now different from what it was back then.
The government argued that the ‘basic structure of the Constitution’—whose primacy has been upheld by several Supreme Court judgments because it safeguards the separation of powers and the independence of the judiciary from the executive—remains intact under the NJAC, as the NJAC’s chairperson is the CJI. The government put forth that the NJAC was good for democracy (which is also a basic feature of the Constitution) and requires that no organ of the state, including the judiciary, enjoyed absolute freedom. Thus, to retain ‘public confidence’, judicial appointments “must be seen both in the context of independence of the judiciary as also the need for checks and balances on it.” The government also sought a reference to the larger bench.
These arguments by the government were rejected by the Court, which held that a judgment of the Supreme Court is final and must be respected even if the government has a different/alternative view. The Court’s powers of judicial review and the ‘popular mandate’ operate in different spheres. The will of the people and sovereignty of Parliament is tested on the floor of the house and a challenge to the constitutional validity of an Act passed by Parliament must be tested on the power of judicial review without looking at the numbers in Parliament! This is based on the separation of powers—the DNA of our Constitution—and augurs well for Indian democracy.
The NJAC judgment upholds institutional autonomy by cutting down on the ‘greater say’ of the executive in the selection of judges while opening the door to greater transparency and accountability so that the best and most deserving, hopefully by consensus and unanimity alone, are selected and appointed. A public acknowledgement of flaws in the collegium system is a sign of acceptance of greater accountability by the judges themselves. This is a forward-looking approach and will enhance the credibility of the institution and restore the faith of the people in the independence of the judiciary.
The author is senior advocate, Supreme Court of India