Debating the NJAC: The Second Judges Case, Judicial Appointments, and the Basic Structure – I

(Today, a Constitution Bench of the Supreme Court reserved judgment in the constitutional challenge to the 99th Amendment and the National Judicial Appointments Commission Act, bringing to an end protracted litigation lasting many months [“the NJAC case”]. The 99th Amendment and the NJAC Act seek to remove the old system of judicial appointments, whereby the three senior-most judges of the Supreme Court (“the Collegium”) decided upon appointments to the Supreme Court, with (what was effectively) a nominally consultative role played by the Executive. Through a new Article 124A of the Constitution, they seek to bring into existence a National Judicial Commission, comprising of six members (the three senior-most judges of the Supreme Court, two “eminent persons”, and the Law Minister), the functioning of which is – per a new Article 124C – is to be regulated by law (which is the NJAC Act). Under a new Article 124B, the NJAC will recommend appointments to the higher judiciary. Articles 124A, B and C form the backbone of the 99th Amendment, and have been impugned as violating the basic structure by destroying the independence of the judiciary, the separation of powers, and the rule of law. The Union has equally strenuously defended the 99th Amendment.

Over the course of this week, on this blog, we will be engaging in an extensive discussion over some of the key issues at stake. I will kick off by arguing that Article 124A, as it stands, violates the basic structure, and ought to be struck down).

The notorious collegium system of judicial appointments was brought into existence in Supreme Court Advocates-on-Record Association vs Union of India [“The Second Judges Case“], a judgment handed down by a nine-judge bench of the Supreme Court in 1993. During oral arguments in the ongoing NJAC case, the Attorney-General asked the Constitution Bench to refer the matter to an eleven-judge bench, so that the correctness of the Second Judges Case might be reconsidered. At that stage of hearing, the Court refused to do so (although, conceivably, it still might). Consequently, the present five-judge NJAC Bench is bound by the judgment of the nine-judge bench in the Second Judges Case. I will therefore bracket the questions of whether the Second Judges Case was correctly decided, and whether the collegium was a creation of “judicial fiat”. That controversy is relevant for answering the question of whether the present case ought to have been referred to an eleven judge bench, and would be relevant in the unlikely event that an eleven judge bench eventually considers it. For present purposes, it is undeniable that The Second Judges Case binds the present bench, and the key issue is therefore what exactly the Second Judges Case said.

The old Article 124 read as follows:

“(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.”

Recall that in the Second Judges Case, the Court argued that if a “consultation” results in a deadlock, then one party has to have the decisive say. In the opinion of the Court, primacy in case of a deadlock would have to vest with the judiciary. To give effect to this, the Court read “consultation” in Article 124 to mean “concurrence“. Thus was the collegium born.

The Union’s argument is that the collegium came into being as a result of the Supreme Court’s interpretation of “consultation” to mean “concurrence” – a purely textual move. What the 99th Amendment does is to remove the basis of Second Judges Case by replacing the text of Article 124 altogether, by the new Article 124A (which sets up the NJAC). Now that the word “consultation” is gone, so has its interpretation in the Second Judges Case, and so also the collegium.

It is undeniable that Parliament has the power to take away the basis of a judicial decision by amending the law (or the Constitution) accordingly – a proposition upheld in Indira Gandhi vs Raj Narain. However, it is crucial to note that the Union’s argument is premised upon the assumption that the source of judicial primacy in appointments, per the Second Judges’ Case – was located exclusively in the text of what was then Article 124 – and even more specifically, in the single word “consultation”, which the Court read to mean “concurrence”. The Union’s argument would not hold if the Second Judges Case held – whether rightly or wrongly – that judicial primacy was actually a facet of the basic structure of the Constitution. In such a situation, a removal of judicial primacy through the new NJAC could not be justified simply by stating that the legislature, acting in its constituent capacity, had removed the textual basis of a prior decision.

So what did the Second Judges Case hold? Consider paragraph 72 of that case:

It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials.”

As a number of cases have held – from Kesavananda Bharati onwards – judicial independence is part of the basic structure. Paragraph 72 (which forms the operative part of the judgment) makes it clear that, in the opinion of the Court in The Second Judges Case – there is a necessary connection between judicial independence, and judicial primacy in appointments. Now, since judicial independence is indisputably part of the basic structure, all necessary facets of maintaining judicial independence also form part of the basic structure. Ergo sacrificing judicial primacy in appointments (as the 99th Amendment does through the NJAC) violates the basic structure.

The Union argues that the 99th Amendment simply changes the mode of appointment while preserving the basic feature of judicial independence. However, a closer look at the reasoning of The Second Judges Case will demonstrate that this argument is incorrect. In that case, the Court noted that ideally, the appointments process was meant to be participatory, consultative and collective, whereby the judiciary and the executive would come to a consensus about the merits of prospective appointee. However, given that there could arise situations where consensus was unachievable, it would be necessary to give one entity primacy, in order to break the deadlock. As the paragraph excerpted above shows, The Second Judges Case held that the primacy required to break the deadlock must lie with the judiciary, in order to preserve judicial independence.

This reasoning is crystallized in paragraphs 40 and 41 of the majority opinion:

 “It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts. 

The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.”

What these paragraphs demonstrate is that judicial primacy in The Second Judges Case did not only arise out of the wording of Article 124(2), but was a necessary implication of the cooperative scheme of appointments envisaged by the Constitution, which in turn was designed to secure the independence of the judiciary (which is part of the basic structure). It also indicates that, contra to the Union’s submissions, judicial primacy did not evolve as a specific response to a temporary situation, but was held to be part of the entire constitutional scheme of appointment. In a word, the basic feature of judicial independence was designed to be maintained through a consultative process, with the provision of judicial primacy to break situations of deadlock. Any amendment that removes judicial primacy in cases of a deadlock (as the 99th Amendment does) must therefore be struck down, because it violates the basic structure.

Furthermore, the link between the “consultation” provision of Article 124 and the basic feature of judicial independence was drawn categorically by the Court elsewhere. In paragraph 36, it held:

   “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act.”

It is therefore incorrect for the Union to argue that by amending Article 124, it is simply taking away the basis of the Second Judges Case (something that it is entitled to do), because in formulating that basis, the Court itself relied upon the basic structure of the Constitution. And this ratio, as pointed out in the beginning, is binding upon the present Court.

As the Supreme Court has held on multiple occasions (see the Constitution Bench decisions in Islamic Academy of Education vs State of Karnataka, (2003) 6 SCC 697 and Punjab Land Development and Reclamation Corporation vs Deshmukh, (1990) 3 SCC 682, the ratio of a case is not only the final decision, but also the principle underlying it. The principle underlying The Second Judges Case is that judicial primacy as a mechanism in order to break the deadlock of an otherwise consultative process is essential to judicial independence, and therefore part of the basic structure.

It is important to stress, once again, that I am not here defending the collegium, or arguing that The Second Judges case was correctly decided, or – for that matter – defending the Constitution Bench’s decision not to refer the matter to an 11-judge bench at the arguments stage. The argument is merely that in the present scenario, we are bound by the nine-judge bench in The Second Judges Case. And if we are to go by what that case laid down, the Supreme Court must strike down Article 124A.

In the next part of this essay, I will argue that even if The Second Judges Case is ambiguous on this point, given Supreme Court decisions prior and subsequent to it, any ambiguity ought to be resolved in favour of the interpretation that I have advanced above.

(Disclosure: The writer has been professionally involved in the case, assisting one of the parties challenging the NJAC)

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