Executive Power and the Judicial Service Commission as a Fourth Branch Institution: The Judgment of the Supreme Court of Kenya

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission [“the JSC”]. The JSC is composed of the Chief Justice, a judge of the Supreme Court (elected by the judges of the Supreme Court), a judge of the Court of Appeal (elected by the Court of Appeal), a High Court judge and a magistrate (one woman and one man, elected by the association of judges and magistrates), the Attorney-General, two advocates (one woman and one man, elected by the members of the regulatory body of advocates), a person nominated by the Public Service Commission, and two members of the public (one woman and one man, nominated by the President and confirmed by the National Assembly). As we can see the JSC’s composition includes a range of stakeholders: the judiciary, the bar, the executive (through the A-G), and the legislature (the confirmatory body for the public members).

Judicial appointments and ancillary issues are further regulated by the Judicial Service Act. Section 15(2) of the JSC Act states that where one of the nominating bodies under Article 171 has chosen its nominee, it shall submit the name to the President, and the President, within three days of the receipt of the name, shall appoint the nominee as a member of the JSC. Controversy arose in 2018, when a judge of the Court of Appeal was elected by his peers to be the CoA’s representative in the JSC. However, instead of “appointing” the judge in accordance with Section 15(2) of the JSC Act, the President forwarded his name to the National Assembly for consideration and vetting. The President invoked Article 250(2)(b) of the Constitution, which provides that members of constitutional commissions (of which the JSC is one) would – inter alia – have to be approved by the National Assembly.

The President’s actions were challenged before the High Court. The case was carried to the Court of Appeal, and ultimately to the Supreme Court, which delivered its judgment on 31 March 2023. Over a dissent by Justice Njoki Ndungu, a majority of the Supreme Court held, first, that in accordance with Article 171, the National Assembly had no role to play in the vetting of the elected nominees; and secondly, that insofar as Section 15(2) of the JSC Act granted authority to the President to “appoint” these elected nominees, it was ultra vires Article 171, and void. The majority based its reasoning on the following grounds: first, that while Article 250 made provisions in general for a group “Chapter Fifteen Commissions”, Article 248 made clear that these provisions applied to Commissions “except to the extent that this Constitution provides otherwise.” (paragraph 56) Article 171 – a self-executing provision for JSC appointments – was an instance where the “Constitution provides otherwise.” (paragraph 57) Secondly, that Article 171 itself envisaged different appointment procedures for different types of nominees. When it came to the public member nominees, for example, Article 171 explicitly envisaged a vetting role for the National Assembly. Consequently, where it did not do so – e.g., for the judicial nominees – it was clear that the Constitution did not intend for the National Assembly to play a role. (paragraph 65) And thirdly – and for largely the same reasons – that Article 171 clearly precluded interpolating the President into the process, even if his role was meant to be largely ceremonial (as the Respondents argued).

While the Majority’s reasoning and conclusion rested upon a close reading of the constitutional provisions and of the JSC Act, there are two deeper, unarticulated points that emerge from the judgment, and which are worth thinking about.

The first is the majority’s insistence that the Constitution could not be read to grant to the President (read: the Executive) any more powers than which were expressly set out in the constitutional text. Indeed, an argument that the President’s power flowed from Article 250 read with Article 132(4) of the Constitution – the latter of which authorises the President to “perform any other executive function provided for in this Constitution” – was explicitly rejected by the Majority (paragraph 52). Now, when you think about it, there are two ways in which a Constitution can be interpreted when it comes to the question of power enjoyed by the political executive. The first is to say that the executive power to do “X” exists and is valid unless expressly prohibited by the Constitution. The second is to say that there is no executive power to do X unless expressly authorised for by the Constitution. The question turns upon the normative baseline of the Constitution: as the old chestnut goes, is everything permitted unless prohibited, or is everything prohibited unless permitted (except that here it applies to the executive, and not to individuals).

The majority’s answer is the latter. In some ways, this tracks the Supreme Court’s holding (exactly on this day, one year ago!) in the BBI case, on the question of the President’s power to initiate a “popular initiative” to amend the Constitution. In that case, as well, the majority read a constitutional silence against the power of the President to do “X”, and reasoned that any exercise of executive power would have to be traced back to an enabling constitutional provision. And both in the BBI case as well as in today’s judgment, the underlying sub-text is the lessons of history relating to the imperial Presidency, lessons that tell us that concentration or accretion of power in the Executive – which judicial interpretation can either enable or hinder – often leads to the erosion of democracy.

In fact, this overarching theme leads us to the second point, which is the majority’s application of the principle to the specific case of the JSC. Here, the majority drew upon the lessons of constitutional history to argue that the JSC was always meant to be independent (paragraph 84 – 88), and especially, independent of executive interference (except where an executive role is, of course, expressly provided for). Making the President the “appointing authority” was just such an example of executive interference, especially given that Article 250 was explicit in contexts where the President was the appointing authority for Commissions (paragraph 89). Thus, the majority held that “we believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.” (paragraph 91)

Indeed, the majority went further and noted that while under the old Constitution, the President would issue a gazette notification to signify an appointment, in this case, even that power was not available: it was the role of the Independent Electoral and Boundaries Commission to do so (paragraph 98). Thus, the majority held that “to give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief Article 171 was intended to cure. (paragraph 100)

Now, the majority’s textual analysis, and its argument that there should be no “implied” executive power unless expressly provided, are beyond cavil. However, there is a slight slippage in the opinion insofar as the majority flags the importance of the independence of the JSC, and the need to protect it from “manipulation” by the executive, but does not elaborate upon how, if the President’s role is purely ceremonial, or gazette-esque, such manipulation is possible. Indeed, Section 15(2) – as it stood – already provided safeguards against the most common form of abuse by an appointing authority – the pocket veto – by stipulating a three-day time limit. Indeed, this point was seized upon by Justice Njoki Ndungu in her dissent, where she went into the question of JSC independence in some detail.

If one were to hazard a guess, one might say that even though Section 15(2) of the JSC Act purports to exclude pocket vetoes, the very interpolation of the President lowers the costs of executive manipulation. One may imagine situations where notwithstanding the three-day period, the President does not confirm an appointment, and makes an argument that while the three-day period envisages executive vetting by virtue of its very existence, there has not been enough time to do so. Protracted litigation would then ensue, and while the President may ultimately lose, the point is not so much about the outcome of the case, as it is that a provision such as section 15(2) enables the possibility of constitutional hardball by the executive, and in striking it down, the majority sought to anticipate and forestall any such hardball (indeed, on this point, it is interesting to note that Justice Njoki Ndungu would have struck down the three-day limit altogether, thus enabling indefinite pocket vetoes!). Indeed, in this context, Justice Njoji Ndungu’s dissent is interesting, because here one sees, clearly spelt out, the opposite interpretive philosophy: that is, executive power should be given full reign unless explicitly contained (see e.g. para 126). As in the BBI case, Justice Njoki Ndungu’s opinion is also based on constitutional history – but on a very different reading of constitutional history. It is perhaps for historians to tell us who gets it right!

A final point, by way of clarification. On the question of the independence of the JSC, the dissent criticised the majority for conflating the independence of the JSC with the independence of the judiciary, noting that, as a constitutional commission, the JSC’s status was not that of the judiciary. To an extent, this was enabled by the majority referring, in paragraph 84, to “the independence of the judiciary and by extension the JSC.” It is important to note, however, that technical criticism aside, the majority’s focus on independence was correct: the requirement of JSC independence flows from its position as a fourth branch, or guarantor institution, which provides the infrastructure that enables the effective realisation of rights (in this case, the rule of law, by securing the independence of the judiciary). The majority’s use of the phrase “by extension”, therefore, is best understood not in the narrow sense that Justice Njoki Ndungu understood it – as equivalent to the independence of the judiciary – but in a broader sense, where commissions such as the JSC create the framework within which rights are enabled.

We can therefore see that two issues of constitutional philosophy underlie this judgment: first, that the role of the Constitution is to limit executive aggrandisement (and therefore, wherever possible, that the Constitution must be interpreted to advance that goal); and secondly, the independence of fourth branch institutions must be protected not only from visible and immediate threats, but from indirect erosion, or – perhaps more accurately – a legal environment that enables erosion. These two ideas constitute the heart of the majority opinion, and provide the underlying justifications for its reading of the constitutional text and structure.

Guest Post: From Translucence to Opacity: Judicial Appointments after the Victoria Gowri Case

[This is a guest post by Rushil Batra.]

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On 10^th February, the Supreme Court handed down its verdict in the case of Anna Matthew v Supreme Court of India, dismissing the petitions that challenged Justice Victoria Gowri’s appointment as a Judge of the Madras High Court. There has been a lot of recent writing on how the government continues to defy the Collegium by selecting and segregating its recommendations. This was also visible in this case, as John Sathyam’s name remains excluded from the notification of appointment even though the Collegium had expressly mentioned that his name should take precedence. Notwithstanding the political drama surrounding the case and issues of judicial propriety that emerge from it, in this essay, I break down the judgement and highlight how, if followed, it will effectively negate judicial review in cases of judicial appointments.

To this end, I first break down the ‘reasoning’ of the court in Anna Matthew. Second, I highlight that the logic employed in this judgment is legally untenable, and third, I examine the consequences of this judgment for judicial review of judicial appointments.

Anna Matthew – The Conspicuous Absence of Logic

This judgement was delivered by a two-judge bench of the Court. While the court finally dismisses the writ petition and allows the appointment to go through, the reasons given by it are legally untenable. There are two interesting propositions in this regard that I intend to deal with here. First, that it is only the eligibility and not suitability of a person for the post of a judge which can be challenged; and second, that Collegium decisions are not subject to judicial review.

Eligibility Versus Suitability And The Lost Cause of Transparency

The court begins by saying that the law on this point is ‘well settled and no longer res integra’. Thus, it is important to see what the settled law on this issue of judicial review over judicial appointments is. In the case of SCARA v Union of India (Second Judges Case), which the court cites with approval, it was held that limited grounds exist for judicial review in case of judicial appointments. One of these grounds was the ‘lack of consultation’ amongst the constitutional functionaries required to be consulted.

The court (in the Second Judges Case) says –

Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making. (emphasis mine)

Hence, apart from eligibility, the only other factor relevant is whether there was consultation – i.e., effective consultation – which can take place only if all information is on record. Naturally, the case was to turn on this relevant question i.e., whether the Collegium was aware of these allegations against Victoria Gowri. If it was not, that is enough grounds for judicial review to proceed.

Coming to Anna Matthew, the court held that Article 217 (which gives the qualifications necessary for one to qualify as a judge of the HC) simply gives the ‘threshold requirements’ for one to be eligible to be appointed as a judge of the High Court. It then proceeds to hold that it is only eligibility that one can challenge and not the suitability of a candidate. In Paragraph 3 the court says :

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review…  judicial review lies when there is lack of eligibility or ‘lack of effective consultation’. Judicial review does not lie on ‘content’ of consultation. (emphasis mine)

Essentially, the court seems to make a sharp distinction between eligibility and suitability. While the former is laid down in Article 217 and can be a basis for judicial review, the latter cannot. Later, there also seems to be a distinction made between ‘lack of effective consultation’ and ‘content of consultation’ as grounds for challenge. So, as mentioned earlier, the next question – the most important question on which this case will be dependent – was whether the Collegium was aware of the allegations and still chose to go ahead with the appointment. The Court seems to believe so when it says: “we reject the argument that the facts were not known and considered by the Collegium.”

Therefore, the court proceeds to hold that the Collegium was very well aware of the allegations and thus ‘effective consultation’ had taken place between the Collegium and other functionaries mentioned in the memorandum of procedure – and hence no ground for judicial review exists. There is only one problem with this statement- we do not know how the Court knows this, without asking the Collegium via a notice to respond to the petition.

Another point that seems to weigh with the court is that, even after the petitioners wrote to the collegium with a representation, requesting them to withdraw the appointment, the Collegium did not act, and hence by not acting, it actively chose to go ahead with its recommendation. Hence, the inaction of the Collegium meant that they still supported their recommendation.

It would be interesting to go back a couple of days when this matter was mentioned before CJI Chandrachud – who was a part of the Collegium that recommended Gowri’s appointment. While agreeing to the list the matter, he had said this in open court:

There are certain developments which have taken place, in the sense that the collegium has taken cognizance of what was drawn to our attention, or came to our notice, after we formulated our recommendations on the recommendation of the Chief Justice of the collegium of High Court of Madras. Since we have taken cognizance of certain developments which have taken place thereafter, we can list this petition tomorrow morning. I will constitute a bench. Let that go before the appropriate bench. (emphasis mine)

Hence, even if we follow the court’s own reasoning that it is only on ‘lack of effective consultation’ and not the ‘content’ of it that the appointment of a person be challenged, this makes the court’s conclusion nothing short of bizarre. It is clear from this statement that the Collegium was not aware of the allegations made against Justice Gowri when it chose to recommend her – which according to the Court’s own admission in Anna Matthew is enough for the need for judicial review over the process. In light of this admission by the CJI, the judgment seems to be existing in a parallel reality – where the facts are not really facts – and whatever facts there are, remain confined to the premises of the Supreme Court behind closed doors. However, a rather pertinent question does emerge, which is that if the Intelligence Bureau (IB) can otherwise give the Collegium adverse reports about other candidates because they shared an article that was critical of the Prime Minister, it is very hard to believe that the premier intelligence gathering body was simply unaware of the alleged hate speech at issue. Was this then, a deliberate withdrawal of information from the Collegium? Unfortunately, we shall never know.

Furthermore, as Venkatesan argues, the court does not follow its own precedents in this instance. The court in Anna Matthew relies on the case of Mahesh Chandra Gupta v Union of India to argue that suitability (as opposed to eligibility) is beyond the court’s power to examine. However, it fails to take into consideration that in the facts of that case: there was in fact effective consultation, and the same files were examined multiple times! There the court held that it could not test the suitability of the candidate after there were multiple consultations, which is arguably not the case here. Thus, going by its own precedent, the Supreme Court should have ideally called for the official records to ascertain this fact. Only if the Collegium was actually aware of these allegations, would the demand for judicial review fail.

No Writ to the Collegium?

Curiously, the court also makes an unqualified statement, holding that it cannot issue a writ to the Collegium. This statement has significant implications. If one reads Anna Matthew, the true conclusion that emerges is that no citizen can ever approach the court challenging the Collegium’s decision (both for eligibility or suitability) – even on the ground of lack of effective consultation – primarily because of the structure and working system of the Collegium. Thus, even if there was a question of eligibility, now that the court has refused to issue a writ, there is no remedy available to obtain. For example, let us suppose that the question was about Gowri J. being a citizen of India. Even in that case, if the court has held that it cannot issue a writ to the collegium to reconsider its decision, what remedy will lie?

Ideally, the Collegium, as an administrative body tasked with appointing judges, should be amenable to judicial review. But this puts the court in a rather awkward position. This also relates back to what Bhatia pointed out earlier: the structural issue of the Janus-Faced Collegium – where the only remedy after the Collegium has given its recommendations is available is before the Court – the same court staffed by people who made the (wrong) decisions in the first place. Can two ‘junior’ judges ever disagree with the five ‘senior-most’ judges in this regard? That is anyone’s guess.

The Death of Judicial Review in Judicial Appointments

The court says:

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review. (emphasis mine)

Hence, any substantive discussion, deliberation, debate or even disagreement by the Collegium can possibly never be enquired into by the Court. Simply put, this puts the Collegium on a pedestal where no other body has ever been placed. With no judicial review of its decisions, no government or civil society representative and also no compulsion to disclose reasons for why it picks certain judges over others, the Collegium has truly become an imperium in imperio.

Unfortunately, this is not surprising. Over the past year years, in the name of judicial independence, transparency has continuously been given a go-by. In December 2022, in Anjali Bharadwaj v CPIO, this court held that the details of Collegium meetings are not subject to RTI i.e., what goes behind the closed doors in Collegium meetings can never be disclosed – apart from the resolution that is published. Qualitatively speaking, this is even worse than Anna Matthew. It is one thing if people are aware of the reasons but cannot approach the court, but it is quite another to say that people have no way of even knowing why certain choices are being made the way they are being made. The (flawed) assumption in both cases is that to ensure judicial independence necessarily requires you to give a go-by to judicial transparency. This not only erodes the people’s confidence in the institution, but it also helps the executive in putting forth the narrative of the NJAC – which is perhaps a bigger demon none of us want to encounter.

This opacity in judicial appointments is, however, not the case around the world. Take the example of South Africa where under its 1996 Constitution, judges are appointed by a Judicial Appointments Commission (‘JAC’). Under the JAC, public interviews and comments form an integral part of the appointment process. Instead of the JAC picking and choosing candidates randomly from the seniority pool, the JAC instead invites nominations from candidates. These nominations are then made public for comments – so those in consideration for a given position are known by the people – after which the JAC receives extensive comments from the civil society and the bar. The interviews are also held in open forums and even broadcasted. However, the final deliberations of the JAC happen behind closed doors.

In the case of Helen Suzman Foundation v Judicial Service Commission, the question of whether the deliberations of the JAC are subject to disclosure came up before the South African Constitutional Court. In stark contrast to the holding of Anna Matthew, the South African Court held –

… a blanket ban on disclosure, rather than a fact-specific case for non-disclosure, is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount.  (emphasis mine)

The South African Court also rejected the argument that disclosure of information would affect ‘candour of deliberations’ or that it would impact the privacy of the individual in consideration (which are often the reasons given by the Collegium/judges to avoid disclosure of information). The court (rightly) held –

JSC members worth their salt ought to be in a position to stand publicly by views they have expressed in private deliberations…Generally the most embarrassing issues that could impugn the dignity or privacy of candidates are raised during interviews. And the interviews take place in public and are often widely publicised. It is this stage that should fill candidates with dread. These are applicants who have put themselves forward for an important public office, and who must expect, and do submit to, gruelling scrutiny at the public interview. (emphasis mine)

We can evidently see the stark contrast in approaches of the South African Court and the Indian SC. Interestingly, in the case of CPIO v Subhash Chandra Aggarwal, it was Justice Sanjiv Khanna – the same judge who now writes Anna Matthew, who in his concurring judgement had held –

Independence in a given case may well demand openness and transparency by furnishing the information…Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.

Thus, it seems that the court after this case has effectively done away with judicial review over judicial appointments as a whole – and has finally gone from translucence to opacity.

The L. Victoria Gowri Elevation Controversy: Structural Issues with Judicial Appointments

This morning saw somewhat odd parallel proceedings before the High Court of Madras and the Supreme Court of India: even as L. Victoria Gowri was being sworn in as an additional judge of the Madras High Court, a challenge to her appointment was being heard before a two-judge bench of the Supreme Court. The Supreme Court ultimately dismissed the petition “with reasons to follow”, despite the fact L. Victoria Gowri had been sworn in while arguments were in progress, and the case had become infructuous. Thus, what precedential (or other) value the Supreme Court’s “reasons” will have in an infructuous case remains to be seen.

The challenge against L. Victoria Gowri’s appointment was premised on her being a former office-bearer in the ruling party (she was the general secretary of the BJP’s Mahila Morcha), as well as the fact that on multiple occasions she had made statements that – it was argued – constituted hate speech against Christians and Muslims. Examples include “the list of Christian aggression is not ending. ‘Where there is a temple, there must be many Churches’ (sic) is their aggressive motto” and “As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially Love Jihad.” Readers interested in a full catalogue can consult this piece.

In this post, I will not argue about whether these statements do or do not constitute hate speech: readers with the record before them, and an awareness of the political and social context in which we live, can make up their own minds on the issue. However, there are two constitutional concerns that have become evident through the course of this controversy, and which speak directly to the question of judicial independence.

The Opacity of Collegium Proceedings

The first concerns the process of judicial appointments. One striking feature about this case is that, apparently, the collegium (in this case, the top three judges of the Supreme Court) was unaware of L. Victoria Gowri’s public statements before it recommended her name for appointment. This is evident from the fact that when the challenge to her appointment was “mentioned” for listing before Chief Justice DY Chandrachud yesterday, he stated:

We have seen the plea and we have read it. There are certain developments which have taken place. Collegium has taken cognisance of what came to our notice and it was after our recommendation.

Despite this oral observation, however, the process of cognisance – or re-cognisance – was short-circuited when the Chief Justice of the Madras High Court fixed L. Victoria Gowri’s swearing in for this morning. The politics of this will be debated long into the future, but bracketing that for the purposes of this post, what is striking is that the collegium came to know of L. Victoria Gowri’s statements after its own processes had been completed, and (theoretically) all that was remaining was for the government to complete the formalities of the appointment.

The reason why this happened is directly related to the opacity of collegium proceedings. Consider, for a moment, how this situation would have played out, say, in the United States, or South Africa, or Kenya – all jurisdictions where judicial appointment processes vary, but are open. In any of these jurisdictions, the names of the candidates being considered for judgeship would have been publicly known before the formal commencement of the selection process. Once these names were in the public, facts – such as L. Victoria Gowri’s statements – would have inevitably come to light. These facts would then have been within the knowledge of the selection bodies (the Senate in the United States, and judicial appointment commissions in South Africa and Kenya). The selection bodies would have taken them into account, and indeed, given that all these jurisdictions require judicial candidates to face questions from the selection bodies, L. Victoria Gowri could have been asked to explain and justify the statements, and how they related to her judicial philosophy – a discussion that would have been public. At the end of the process, the selection body would have made its decision.

In India, on the other hand, we have constructed for ourselves an extraordinary situation where the candidate’s name is effectively made public after their selection by the collegium. The selection process is entirely opaque and behind closed doors, where the parties involved are the collegium and the government (through the Intelligence Bureau). This not only has transparency costs, but also, the costs are asymmetrical: it is but obvious that where the government approves of a particular candidate, it can simply withhold relevant information from the collegium (indeed, this is the only possible implication from the Chief Justice’s observations yesterday). This, then, creates a situation like the present one: by the time that a candidate’s name is in the public domain – thereby allowing for relevant material is brought to the collegium’s notice by the public – the selection has already been made. Once again, the fall-out of this is asymmetric: given that the government retains the power of formal appointment, when it approves of a candidate, it can rush the process through (as happened in the present case). In other cases, the government can exercise a pocket veto (which it has also done with respect to the Madras High Court, by refusing to appoint a judge in the teeth of an express direction by the collegium).

One can therefore see that not only is the collegium’s opacity problematic in its own right, it is problematic in that it benefits the political executive. In that sense, it is somewhat like judicial evasion: the court’s failure to decide politically critical cases is problematic from a rule of law perspective, but it is more than that: it is problematic because status quo directly benefits the political executive.

The Janus-Faced Collegium

The above issue leads directly into the second problem. Now we have a situation (as in this case) where the collegium has made its recommendation. Fresh material has been found, but because the recommendation has already been made, the only effective remedy available is a legal challenge to the recommendation. Where does that legal remedy lie? Well, before the Supreme Court itself.

This creates the following situation:

• The Supreme Court Collegium’s recommendation is an administrative decision, made by an administrative body. As such, it is subject to judicial review on administrative law grounds. However, here is the problem: whatever the formal character of the collegium’s recommendation, it is a recommendation made by the three senior-most judges of the Supreme Court, the legal challenge to which now has to go before two or three of their own junior colleagues (as happened in this case).
• Furthermore, the Chief Justice of India, who heads the collegium, is also the master of the roster, and therefore will constitute the bench that will hear the challenge. In other words, therefore, the Chief Justice, acting on the administrative side, will constitute the bench that, acting on the judicial side, will hear a challenge to an administrative decision made by a body chaired by the Chief Justice.

This is, in short, a mess. It is a mess because you have a poly-vocal Supreme Court acting in three different avatars: the collegium, the master of the roster, and the judges are all involved in this decision-making process, the sanctity of which depends upon each of these three avatars acting entirely detached from each other. But as we all know, reality simply does not work that way.

Indeed, that reality does not work that way is evident from today’s hearing: both judges hearing the case exhibited repeated discomfort with being asked to sit in judgment over the collegium’s recommendation, and insisted that the collegium must have been aware of all facts when it made its recommendation (notwithstanding the Chief Justice’s public observation to the contrary!). One cannot entirely blame them: at the very least, this was an extremely embarrassing situation for all parties concerned, an embarrassment that – once again – is directly traceable to the collegium’s structural opacity.

It is important to note that it need not be this way. Consider the case of South Africa, where proceedings of the judicial appointments commission have been subjected to judicial review (see Hlophe vs Judicial Services Commission), and where the courts have directed the commission to make their deliberations public (Helen Suzman Foundation vs Judicial Service Commission).* This is not to suggest that the South African appointments process is perfect, but what does exist is a system of checks and balances, at the heart of which are the values of transparency and publicity. And this can only happen if there is a degree of separation between the judicial appointments commission and the court: this allows for a check, and it allows for a corrective mechanism in case of mistakes and errors (because to err is human). When, however, the appointments body (the collegium), the body for the constitution of benches (the Chief Justice’s office), and the judicial review body (the Supreme Court) are all effectively one and the same, but trying to play different and functionally independent roles, correction becomes very difficulty.

Furthermore, the judges insisted that the only question they could consider in judicial review was L. Victoria Gowri’s eligibility and not suitability. Leaving aside the question of whether alleged hate speech is a question of suitability or eligibility, this is a correct position, but once again, it depends on the question of suitability having been fully considered during the selection process. We therefore return to the problematic structural opacity of the collegium, and how it benefits the political executive: because the proceedings are opaque, and the only other party is the government, the government can influence the materials on the basis of which the collegium determines “suitability”. And once the collegium has made its determination, and the names are public – allowing for further material to come out – the question of “suitability” has now been foreclosed! It should be immediately obvious that this is severely detrimental to judicial independence.

Conclusion

Today’s judicial order dismissing the challenge to L. Victoria Gowri’s appointment was the chronicle of a failure foretold: once the collegium’s recommendation was in, it was obvious that – for the reasons explained above – there would be no going back, regardless of the desires and motivations of the individual actors involved. But taking a step back from the specific actors in this drama, it is important to locate the roots of the problem in the structure of our judicial appointments process. In this post, I have argued that the present structure is problematic both in principle, but also because it asymmetrically benefits the political executive. While L. Victoria Gowri’s case is a stark example of this asymmetry because – departing from the norm – her statements were plastered all over the public sphere, the problem does not begin or end with this appointment. What we need is an appointments process that genuinely safeguards judicial independence from executive dominance. The collegium (while a better option than pure executive control) is not it.

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*I thank Sanya Samtani for explaining the South African cases to me.

Guest Post: Concerns Around the Tribunals Reform Ordinance

[This is a guest post by Shubhansh Thakur.]

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Tribunals were introduced into our justice dispensation system with the expectation to ease the burden of the traditional courts by bestowing upon them the jurisdiction to deal with certain specified matters. Certainly, it turns out that they have attained a prominent place in the adjudication of statutory rights and liabilities. The genesis of these tribunals can be traced to Articles 323A and 323B, where the former provides for the establishment of administrative tribunals as the parliament may by law provide, while the latter authorises the establishment of other tribunals falling within the subject matter specified in the second clause. The legislature has, in the exercise of its authority, established numerous tribunals to date for adjudication of several subject matter-specific disputes and correspondingly made convoluted attempts to encroach upon the independent functioning of these tribunals. One such attempt of the legislature will form the subject matter of this post: the recently promulgated “The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021” (“Ordinance”) amending the Finance Act,2017 (“Act”).

The Ordinance among other things has amended Section 184 of the Act dealing with the qualification and appointment of Chairperson and other members of the tribunal. To give a broad overview, the said section is the result of various directions rendered by the Supreme Court (“SC”) in the course of thwarting legislative attempts to retain control over the appointment for tribunals. On an overt reading of the amended section, the legislature seems to follow what has been laid by the SC but the detailed scrutiny indicates to the contrary. Here, I shall delve upon those details to highlight the dichotomy.

Initially, I shall set the background by discussing the major decisions of the court which have culminated in the Ordinance. Against this backdrop, I will argue that the Ordinance does little to solve the already existing issues, and creates scope for the creation of new ones. The Ordinance as a whole shows the need for the SC to revisit its theory of “the casting vote to CJI” as a sole means to ensure judicial dominance. The Ordinance violates several directions of the SC, but I shall restrict myself to the composition of the committee responsible for making appointments to tribunals and its impact on the primacy of the judiciary.

BACKGROUND

Before moving on to the substantive parts of the Ordinance, it is necessary to take a bird’s-eye view of the long-drawn litigation around appointments to these tribunals. The controversy erupted from the case of S.P. Sampath Kumar v. Union of India, where the ‘Administrative Tribunals Act, 1985’ was challenged. The court struck down Sec.6(1)(c) of the impugned Act, which made civil servants eligible for appointment as Chairman in these tribunals. The court saw these tribunals as complete substitutes for the HCs and thus viewed the chairman as akin to a High Court (“HC”) judge and held that such posts must be acquired by a person of proven competence with experience in the legal background, like retired HC judges. The court believed public trust and confidence would be breached if civil servants without any legal experience in fair adjudication would be left to decide the disputes. Another provision conferring exclusive discretion with the government for appointments to tribunals was also held to be unconstitutional for the reason that the government cannot have an unfettered discretion in appointing members to tribunals which are akin to HC. The court recommended alternative approaches to overcome executive control i.e. either to consult the CJI before making an appointment to these tribunals (and no appointment should be made over his/her disagreement unless for cogent reasons), or to form a high powered committee headed by the CJI, or another SC judge, or an HC judge as a nominee of the CJI, to select appointees. 

Thereafter, in L. Chandra Kumar v. Union of India, the appointment of administrative members to tribunals was challenged for their non-expertise in fair adjudication. The court annulled those challenges and noted that blanket removal of such members would strike at the very idea behind the establishment of tribunals, which were envisioned as specialised bodies where trained administrators with grass-root experience will pool in their subject-specific knowledge with the judicial members (“JM”) to reach a fair and reasoned decision. The court, by overruling the view in Sampath Kumar, held these tribunals to be supplemental to the existing HC rather than acting as their substitutes. Moreover, the decisions of the tribunals were held to be reviewable by a division bench of the HC (¶93). The court also believed that a committee headed by the CJI would ensure the recommendation of competent administrative members.

In 2010, part I-C and I-D of the Companies Act,1956 were challenged in the case of Union of India v. R. Gandhi (“R Gandhi”). The impugned parts authorised the transfer of cases from several courts to tribunals arising out of the Companies Act. The SC repelled those challenges and upheld the competence of the legislature to transfer the matters from courts to tribunals and to prescribe the eligibility criteria for appointees. However, such eligibility criteria were held to be alterable by the courts as a part of judicial review to make them comply with the independence of tribunals. The court also altered the composition of the committee responsible for appointments in tribunals due to the absence of members from judicial wing. The government was directed to include two members from the judiciary, consisting of CJI or his nominee, and any other SC or HC judge to be nominated by CJI, apart from two members from the executive wing. In the case of Madras Bar Assn. v. Union of India (“NTT case”), the aforementioned principles were reiterated to quash the formation of the National Tax Tribunal to substitute the HC, without having the salient features of a HC (¶128). 

Then came the recent case of Rojer Mathew v. South Indian Bank (“Rojer Mathew”), wherein the provisions contained under Section 184 of the Act (which has been now amended) and rules framed thereunder were challenged on the ground of excessive delegation and as being contradictory to the previous directions of SC. The SC upheld Sec. 184 but the committee responsible for recommending appointees to these tribunals was overruled since the role of the judiciary in the committee was absent except for virtual representation. The court directed the government to include members from judiciary on the lines of the Gandhi Case. The court by relying upon the fourth judges’ case also observed:

“We are in complete agreement with the analogy elucidated by the Constitution Bench in Fourth Judges case [SC Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1] for compulsory need for exclusion of control of the executive over quasi-judicial bodies of tribunals discharging responsibilities akin to courts.”

This exclusion of executive control as per the fourth judges case is a means to preserve the independence of judiciary (¶921). The primacy of the judiciary in appointment includes two elements i.e. initiation and finalisation of the names to be appointed (¶1071 of fourth judges case). The primacy is rendered to the judiciary because (or so these judgments argue) it is best suited to judge the competence of the appointees in comparison to the government, which is certainly not better qualified or equipped to do so. It is for this reasoning that the government cannot reject the names recommended by judiciary (¶692) for appointments in HC and SC. Applying these principles, the role of judiciary in tribunal appointment should also be as imperative as in judicial appointments, especially when the SC has acquiesced to the principles in fourth judges case. This premise will be used subsequently while dealing with the Ordinance.

ANALYSIS

Vexatious Provisions

Sec. 184 (3) of the Ordinance lays down the composition of the Search-cum-Selection Committee (“Committee”), which will recommend the names to the government for appointments to be made in the Tribunals mentioned in the Eighth Schedule of the Act. This Committee will consist of (i) CJI or any other judge of the SC nominated by CJI, as the Chairperson with a Casting Vote; (ii) two Secretaries, to be nominated by the government; (iii) one other member who will vary depending upon the Tribunal and post concerned. Such a member for the appointment of a new chairperson will be the outgoing chairperson of the Tribunal while in cases of an existing chairperson seeking re-appointment, a retired HC or SC judge is to be nominated by the CJI. Moreover, if the appointments relate to the Industrial Tribunal, Debt Recovery Tribunal or in a case where the chairperson to be appointed is not a retired judge of an HC or SC (usually a technical member) or for any other notified tribunal, the fourth member in the committee will necessarily be a retired HC or SC judge, to be nominated by the CJI. All the aforementioned members of the committee will have voting power. Additionally, the Committee will also have a Secretary from the concerned department or ministry, under which the Tribunal has been constituted, who will act as a convenor, without voting authority. 

Broadly speaking, the Committee will include the CJI or her nominee as the sole representative of the judiciary, while others include outgoing members of the tribunal or the retired judge of SC or HC along with a couple of representatives from the executive wing. While the composition per se may not appear to be troublesome, it becomes so when seen in conjunction with other provisions of the Ordinance. One such provision is Sec.184(8) which grants immunity to appointments from being declared invalid merely due to the absence of a member or a vacancy in the Committee (“vacancy provision”). 

Thus, applying the principles of the Fourth Judges’ case as accepted in Rojer Mathew, primacy must be rendered to the opinion of the judiciary (which includes initiation and finalisation of names). Since the Committee has a sole representative from the judiciary, its role is pervasive and imperative. Any appointment made in defiance to the opinion of such a representative will defy primacy to the opinion of the judiciary, which cannot withstand constitutional scrutiny. It is also essential to point out that the appointees also include technical members, who are usually retired Civil Servants and whose competency can be best judged by the government and not the judiciary. The government can certainly recommend the person to be appointed, however, that advice will have to be approved by the representative of the judiciary before the name can be initiated and mulled in the committee.

However, there can be two situations where the role of CJI/its nominee is at the risk of being undermined due to vacancy provision. The two situations have been discussed below:

Situation I– When the CJI/its nominee due to some contingency could not attend the committee meeting and a name has been recommended for appointment.

At the outset, it is essential to point out that the subsections do not prescribe a valid quorum for a committee meeting; instead, immunity is granted via vacancy provision to appointments made in the absence of members. However, while the Committee is free to frame its procedure, this power cannot be extended for prescribing a valid quorum for the meeting as the same would stand to nullify the effect of the vacancy provision. In other words, such a rule of procedure, if framed, would be ultra vires the parent legislation and hence invalid.

Thus, a valid quorum in the absence of a rule/provision fixing the quorum will be governed by the case of Ishwar Chandra v. Satyanarain. The SC, in this case, has held that a meeting of a committee will be valid as long as the majority of the members are present in the meeting. This majority has been interpreted to mean the majority of the members possessing voting power, which in the scenario under discussion adds to 3 [i.e. half of total plus one (4/2+1)].

A conjoint reading of the aforementioned paragraphs goes on to show that a meeting can be held to be valid even in the absence of the CJI and the recommendation made in the meeting will remain unaffected due to vacancy provision.  In such a case, consultation with the CJI can be avoided altogether, let alone the aspect of primacy to her opinion.

Situation II– When the CJI has attended the meeting but does not agree to a particular proposal while other members do.

It would also not be an unlikely scenario to imagine that the CJI does not agree to a particular proposal for an appointment, while the other three members of the Committee may. In such a case, can the appointment be held to be valid? Unfortunately, based on the Ordinance, the answer is in the affirmative. In such a case, Casting Vote will do no good because it cannot be exercised unless there is a deadlock in the Committee concerning a particular proposal.

The primacy of the judiciary in these appointments cannot be ensured unless a particular proposal receives the concurrence of CJI along with the rest of the members. This is because she/he is the sole representative of the judiciary and best suited to judge the competence of the appointees for their effective and independent discharge of functions. The primacy will be completely vitiated when a name is recommended to the disagreement of CJI and Casting Vote does nothing to make up for such disagreement. 

Escaping the Constitutional Safeguards

The importance of consultation with the CJI (as a representative of the Judiciary) and its opinion can also be understood by drawing an analogy with the appointment process of traditional courts, which are sought to be replaced by Tribunals. The Committee is primarily responsible to recommend names for appointment in the Scheduled Tribunals. These Tribunals can be bifurcated into those which are established to replace the subordinate courts exercising original jurisdiction while others include Appellate Tribunals established to supplement the supervisory jurisdiction of HC. In both of these courts, a duty to consult the judiciary has been provided for before an appointment is made by the Governor or President, as the case may be. In appointment to subordinate courts, consultation has to take place with the HC (Art.233) while in the case of appointment to HC, consultation has to be made with the CJI and CJ of HC (Art.217). It is vital to mention that the advice tendered as a result of such consultation process is binding on the government (¶133 of Fourth Judges case). When the Tribunals sought to replace/supplement the traditional courts and perform their jobs (except which the Constitutional Courts have been specifically authorised to do), safeguards in appointment imbibed in the traditional set-up must also be carried forward to the Tribunals. Therefore, consultation with the judiciary cannot be compromised and the advice so tendered as a result of the consultation will have to be adhered to by the government. If this safeguard is not carried forward, the appointments to the Tribunals will provide an indirect route to the government for interfering in judicial appointments, something that the executive has been barred from doing. 

This, however, cannot be achieved with an Ordinance where a mere Casting Vote has been conferred to the CJI. Additionally, the incorporation of vacancy provision would certainly make non-consultation with the CJI in appointments a possibility, if not a certainty. 

Executive Discretion in Finalisation of Names

Apart from this, the government has also kept to itself the power to take a final call on the appointments to be made. This has been done by employing Sec.184(7), wherein the Committee is required to recommend a panel of two names for the government to choose from within three months. It is pertinent to point out that this section has been brought to overrule the judgement of Madras Bar Assn., wherein a rule of like nature has been quashed by the SC (¶53(iii)). The court had explicitly directed the government to limit the recommendation to a single name while keeping the other person waitlisted, to be recommended if the previously recommended name has not been approved by the Intelligence Bureau. The SC’s direction is also intending to preserve the primacy rendered to the opinion of the judiciary, of which finalisation of the name to be appointed is an integral part. The executive by this has made yet another attempt to impinge upon the task exclusively reserved for the judiciary. Hence, this provision violates the primacy of the judiciary in such appointments and abridges separation of power forming part of the basic structure of the Constitution, which cannot be abridged even in the cases of ordinary legislation. 

WHAT NEEDS TO BE CORRECTED

As reflected above, therefore, the conferment of Casting Vote alone will not ensure judicial dominance in line with the principles laid down in the Fourth Judges’ case. Rather, a veto must lie with the CJI to overturn the Committee’s decision, to make primacy to the opinion of the judiciary meaningful in such appointments. This veto power will at all times be guarded with judicial review, giving the aggrieved party a remedy for overturning it, when exercised arbitrarily. If this cannot be done, then the court must issue a writ of mandamus and direct the government to replace or supplement the vacancy provision with a proviso that a meeting cannot be valid unless the CJI is present in the meeting and an appointment in the absence and without the concurrence of the CJI shall be null and void. Apart from this, the court is expected to strike down the provision where the government has kept to itself the power to take a final call on the names to be appointed and reiterate its previous direction of limiting the recommendation by the Committee to a single name to exclude executive discretion in such appointments.

CONCLUSION

The court has to appreciate the distinction between the existence of an SC judge and an HC judge as against a retired member of the judiciary. The latter cannot be considered to be a representative of the judiciary, even if nominated by the CJI. The purpose is not merely judicial dominance, but primacy to the opinion of presently serving judiciary to ensure independence and competence of these members and the Tribunals as a whole. With these shortcomings in the present system and continuous reluctance on the part of the government to accept the already laid down directions, the time is ripe for the formation of the National Tribunal Commission (“NTC”) to oversee the administrative requirements and appointments to Tribunals. NTC has been discussed at length in Rojer Mathew(¶343), to liberate Tribunal appointments from executive menace. 

NTC will include- three serving judges of the SC along with two serving HC judges, all of them to be nominated by the CJI. The others include two members to be nominated by the government while two experts will be appointed by the government in consultation with the CJI. NTC is sufficiently safeguarded as against the present set-up because the judiciary will be represented by five serving judges in a nine-membered committee. The CJI will also have a role to play in the appointment of experts, leaving the executive representation to a meagre two in a nine-membered committee. Such a majority of the judicial members will ipso facto ensure effective consultation among judicial members and there will always be a couple of members from the judiciary to make its representation in any valid meeting. The government must distance itself from judicial appointments as their role is limited to serve as a system of checks and balances and not to drive and control the entire process. 

The Ordinance has already been challenged on several other grounds and one can only expect that the Apex court will reassess its Casting Vote theory and examine the impact of vacancy provision in its adjudication, in order to preserve the public trust in the judicial system.

Guest Post: From Foreigners Tribunal in Assam to Justice Pushpa Ganediwala – A Question of Decisional Independence?

[This is a guest post by Talha Abdul Rahman.]

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Reportedly, in Assam’s Foreigners Tribunal, the renewal of annual contract of its Members depends upon the ‘conviction rate’. In other words, it means that if the members of the Foreigners Tribunals declare a higher number of persons as foreigners, higher are their chances of being retained on their posts.  Elsewhere,  I have criticised Foreigners Tribunals in Assam for a variety of reasons, including being an affront to decisional independence.

‘Decisional Independence’ is a facet of ‘independence of the judiciary’ where every individual judge is (expected to be) insulated from external forces that may influence her decisions. This includes factors that may move her conscience to please the Government or a party to the litigation. As a doctrine, this even requires a judge to be able to think and apply her mind independently from other judges on the bench.  Thus, when members of the Foreigners Tribunals are expected to have a certain ‘conviction rate’ just to be able to remain in employment or are expected to please the body ‘supervising’ their function, it naturally means that their decision making process lacks the required hallmark – independence. This fear of ‘reprisals’ for deciding cases according their conscience denudes the legal system of its legitimacy.

The situation of a member of the Foreigners Tribunal whose contract is not renewed and the situation of Justice Pushpa Ganediwala whose judicial appointment to be made permanent has been withdrawn by Supreme Court is qualitatively comparable. A judge cannot be punished for wrong judgments which are otherwise within her jurisdiction. This is because when a judgment is bad, there are ways to have it corrected. I have no quarrel that the reasons given by Justice Ganediwala’s judgment in her judgment in the recently reported POCSO Cases  are perverse – and in the same breath, all of us can count at least half a dozen other judgments of High Courts and Supreme Court whose reasoning we find perverse.  However, to punish a judge for taking a particular view on the matter is not supported by the Constitution. 

It would be a good moment to also recall that Justice R. N. Agarwal and Justice U. R. Lalit were not confirmed as judges of the High Court for their actions in blocking the State actions during the Emergency. Between the Emergency and today, we are still doing the same thing our judges – albeit for seemingly different reasons.

One may argue that non-confirmation of an additional judge of a High Court is not a ‘punishment’. It is much like an employee on probation who has not been confirmed – there is no vested right.  To this,  I have two preliminary replies: a judge’s position is different from an ordinary employee, and second, once the services of a probationer have been confirmed, an avenue of withdrawal of confirmation may not necessarily be available under the service rules.  And, on facts, can one really say that the action of withdrawal of recommendation is not punitive?

In Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1, the Hon’ble Supreme Court has held that:

714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips [ Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales] said: “In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.”

718. The entire package of rights and protections ensures that a Judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a Judge. This does not mean that a Judge may take whatever decision he/she desires to take. The parameters of decision-making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that Judges can do as they please.

726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”. It is also manifested in the ability of the institution to have “functional independence”. A comprehensive and composite definition of “independence of the judiciary” is elusive but it is easy to perceive.

The judgment in Supreme Court Advocates-on-Record Assn (supra) makes it rather clear that any action that may be destructive of decisional independence would not pass the muster of the basic structure test of independent judiciary. The precedent of withdrawing recommendation to make an additional judge permanent does not appear to be happy one. Admittedly, the case of Justice Pushpa Ganediwala is a hard case. Since hard cases make bad law, I think the issue now, for the future, is not so much of the withdrawal, but of what factors that went in approving her appointment in the first place?

Postscript: At some point, the Supreme Court must look at the working conditions  of contractually appointed members of the Foreigners Tribunals of Assam and of the Foreigners Tribunals itself. I mentioned it in the beginning, not only for its shock value – but because it is a unique tribunal that is being systemically and systematically constrained to declare Indians as foreigners rendering them Stateless – and that is the real point of this article. The opinions produced by Foreigners Tribunals in Assam are as shocking as judgments of Justice Pushpa Ganediwala  but in Assam the authors of such perverse judgements are rewarded by renewing their contracts. Their members compete to be the highest wicket takers – a pejorative for declaring persons foreigners.

The NJAC Judgment and its Discontents

In a landmark judgment today, the Supreme Court struck down the 99^th Constitutional Amendment for being ultra vires the basic structure of the Constitution. The 99^th Amendment was intended to replace the “collegium” system, in which the three senior-most judges of the Supreme Court had the final say on judicial appointments, with a National Judicial Appointments Commission (“NJAC”) consisting of the law minister, two “eminent persons”, and the three aforementioned judges. In striking down the NJAC, the Court also held that the collegium system of appointments had revived, and was operative. Justices Khehar, Lokur, Goel and Joseph wrote separate opinions for the majority, while Justice Chelameshwar dissented.

In an extended debate earlier on this blog, I had argued that Articles 124A and 124C, introduced by the Amendment, ought to be struck down. I, therefore, agree with the conclusion of the majority. However, I would also submit – with respect – that the four majority opinions are flawed in some serious respects, and lay down propositions of law which are not adequately defended or justified. In this essay, I will give a brief account of the majority holdings, and their discontents.

Background

Let us briefly go over the background to this case. Under the old Article 124, the President was to appoint judges in “consultation” with the Chief Justice, and other such judges that he might see fit to consult. In The Second Judges Case, a nine-judge bench of the Supreme Court held that the word “consultation” was to be read to mean “concurrence”, and as a result, established the collegium system, which upgraded the judiciary’s role from a formally consultative one, to one in which the three senior-most judges of the Supreme Court had the last word (“primacy”) in appointments. The 99^th Amendment was Parliament’s attempt to overcome the holding of the Second Judges Case by replacing Article 124 with a new set of constitutional provisions, which established the NJAC. Article 124A detailed the composition of the NJAC (see above). Article 124C delegated the details of the selection process to parliamentary legislation, in pursuance of which the legislature framed the National Judicial Appointments Commission Act. Both the 99^th Amendment and the Act were ultimately challenged before a Constitution Bench of the Supreme Court.

Issues

As I had argued in my summary of the NJAC debate, the Constitution Bench would be required to answer the following questions:

124A: In light of the fact that the Second Judges Case is binding upon the present bench,

(a) Did The Second Judges Case hold that judicial independence is affected by the nature or manner of judicial appointments?

(b) If yes, then did the Second Judges Case hold that judicial primacy in appointments is part of the basic structure, because it preserves judicial independence?

(c) If yes, then did the Second Judges Case also hold that judicial primacy in appointments is a necessary requirement for the protection of judicial independence?

124C: In light of the fact that under the Constitutional scheme, appointment of judges is a constituent power contained in the Constitution, is it consistent with the separation of powers to move it from the Constitution to the domain of parliamentary legislation? Can the power of the parliament be relatively aggrandised at the expense of the executive and judiciary?

None of the judgments (majority or minority) dealt with Article 124C and the separation of powers. On Article 124A, the four majority opinions, with varying degrees of emphasis and analysis, answered “yes” to each of the three questions.

Referral and Merits

Another preliminary remark, for the sake of clarity. During the course of arguments, the Union requested the bench to refer the matter to an eleven judge bench, in order to reconsider the correctness of The Second Judges Case (in my view, this would have been the correct thing to do). The Court, while declining immediate referral, indicated that it would fully deal with the question while handing down its final judgment. Consequently, the majority opinions of Justices Khehar, Lokur and Goel are divided into two parts: the rejection of the referral, and the finding of unconstitutionality (there is also a third part dealing with the question of whether Justice Khehar ought to have recused himself, but we can ignore that for now). This is somewhat unfortunate, because in the judgments, the considerations that weighed with the Court in declining referral tend to become blurred with the arguments on unconstitutionality, leading to a significant amount of confusion.

Let me explain. In rejecting referral, the majority is, in effect, stating that there are no good reasons to review The Second Judges Case. In doing so, the majority attempts to show that The Second Judges case was correctly decided insofar as, the collegium is consistent with the scheme of the Constitution. Now, whatever you think about this conclusion, it doesn’t even come close to answering the question of the 99th Amendment’s constitutionality. This is because the answer to that question depends upon whether the collegium arose only out of the Court’s textual interpretation of the word “consultation” (in which case, the parliament is entitled to amend Article 124, get rid of “consultation”, and simply remove the basis of The Second Judges Case), or whether the Court found it to be part of the basic structure (in which case, obviously, Parliament couldn’t amend it away). This was substantially in issue between the parties, and the judgments of Justices Lokur and Goel record it (while failing to substantially address the dispute).

In other words, the constitutionality of the collegium does not imply the unconstitutionality of the 99th Amendment. Unfortunately, however, the majority opinions, at various points, seem to be taking the latter as the natural consequence of the former. This, as I will attempt to show, damages the overall structure of the holding.

Justice Khehar’s Majority Opinion

Justice Khehar’s leading opinion (clocking in at 440 pages) provides, broadly, five reasons why the Second Judges Case was correctly decided. First, he argues that judicial primacy in appointments was repeatedly accepted by the Court since the case of Shamsher Singh. The First Judges Case, which held that the veto lay with the Executive, and which was overruled by The Second Judges Case, was thus a lone aberration in a continuous line of precedent (paragraph 60, referral opinion). Secondly, he argues that the collegium does not violate the constitutional scheme by effacing the participation of the Executive, since the President (acting on the aid and advice of the council of ministers) can still object to recommended names, provide his reasons, and so on: only the last word, in case of a stalemate, is with the collegium (paragraph 68, referral opinion). Thirdly, in the Constituent Assembly Debates, judicial appointments were specifically discussed in the context of judicial independence, making it clear that the constitutional scheme regards appointments as an integral part of judicial independence (paragraph 76). Fourthly, in the Constituent Assembly Debates, while the word “consultation” was being discussed, Dr. Ambedkar clearly stated that it was intended to “curtail the will of the Executive” (paragraph 78). Consequently, if the idea was to “shield” the appointments process from the executive, the Second Judges Case was correct in giving “consultation” a meaning that going beyond its dictionary equivalent (paragraph 79). At the same time, Dr Ambedkar was hesitant about giving a complete veto to one individual – the Chief Justice. The Collegium achieves the desired balance between the two positions, by placing primacy in the hands of a plurality of judges. And fifthly, consistent practice since Independence allowed the Chief Justice the final say in judicial appointments (paragraph 86).

While I have no quarrel with the proposition that judicial appointments are part of judicial independence, I find Justice Khehar’s fourth point particularly troubling. Justice Khehar moves glibly between “curtail the will of the Executive” and “shield the appointments process from the Executive”. The two, however, are not equivalent. As Justice Chelameshwar argues in dissent, the history of the Constituent Assembly Debates suggests that what the framers were worried about was preventing Executive dominance in the appointments process. This appears a more persuasive reading of the “curtailing the will of the Executive”, one that does not necessitate judicial primacy as a corollary.

Be that as it may, it is at this stage that Justice Khehar makes his major move. In paragraph 149 of his merits opinion, he says:

“... the word consultation… have to be read as assigning primacy to the opinion expressed by the Chief Justice of India (based on a decision, arrived at by a collegium of Judges), as has been concluded in the “Reference Order”. In the Second and Third Judges cases, the above provisions were interpreted by this Court, as they existed in their original format, i.e., in the manner in which the provisions were adopted by the Constituent Assembly, on 26.11.1949 (-which took effect on 26.01.1950). Thus viewed, we reiterate, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted). Therefore, when a question with reference to the selection and appointment (as also, transfer) of Judges to the higher judiciary is raised, alleging that the “independence of the judiciary” as a “basic feature/structure” of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached…”

In one word – the word “therefore” – Justice Khehar simply assumes away the core controversy! In the first part of the paragraph, he correctly notes that the Second and Third Judges Cases held that the word “consultation” meant primacy of the Chief Justice’s opinion. But if that was all that those cases said, then surely it is open to the Parliament to amend the Constitution, remove the word “consultation”, and take away the basis of those judgments – which is what it did. It must additionally and independently be shown that the Second Judges Case held that judicial primacy was part of the basic structure. As Vishwajith and Suhrith have argued on this blog, there is enough evidence in The Second Judges Case to militate against this conclusion (I have argued to the contrary). In either event, Justice Khehar’s assumption that everything after the “therefore” flows from everything before it, is misplaced: and this is the fulcrum of his decision.

After holding that judicial primacy in appointments is part of the basic structure, the rest follows more or less automatically. Judicial primacy in the NJAC is lost by the veto accorded to the “eminent members”; consequently, Article 124A and the Act must be held unconstitutional (paragraph 239). Justice Khehar also holds that the term “eminent persons” is unconscionably vague, and strikes that down as well (paragraph 182). Incidentally, he also states – while striking down the NJAC Act – that ordinary law can be challenged on the grounds of the basic structure (paragraph 220).

The Other Majority Opinions

The opinions of Justices Lokur, Joseph and Goel largely follow this structure, with a few variations. Justice Lokur points out additionally, for instance, that the NJAC not only diminishes the role of the CJI, but also that of the President, by converting his role from participatory to that of rubber-stamping the NJAC’s recommendations (paragraph 486), and that the presence of the Law Minister may skew the process (paragraph 516). Justices Joseph (page 899) and Goel (paragraph 18) hold – in clearer terms than Justice Khehar – that The Second Judges Case held that judicial primacy is part of the basic structure – but like him, they provide no analysis to buttress key claim. The amount of time all judges spend on showing that judicial primacy has been a long accepted constitutional convention makes me feel, once again, that mixing up the questions of referral and merits has led to a deeply confused judgment. Even if judicial primacy in appointments was a long-established constitutional convention, Parliament is entitled to change that through an Amendment. To invalidate the Amendment, you must show that judicial primacy is part of the basic structure. That claim is asserted. It is not demonstrated, either through through the text and structure of the Constitution, or through a close reading of the Second Judges Case.

Unfortunately, in what is otherwise a powerful dissent, Justice Chelameshwar also seems to miss this point: he too does not analyse the Second Judges Case for its holding. This is, of course, as important for him as it is for the majority – because if The Second Judges Case did hold that judicial primacy was part of the basic structure, Justice Chelameshwar, as part of a five-judge bench, would be bound by it.

Conclusion

What then are the key holdings of the majority? I would summarise them as follows:

(1) Judicial appointments, being an integral facet of judicial independence, are part of the basic structure.

(2) Judicial primacy in judicial appointments (with executive participation) is also part of the basic structure.

(3) The collegium allows for Executive participation while maintaining judicial primacy through the Collegium.

(4) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.

What does this mean for the future? Parliament can, if it wants, bring in a new NJAC. But, in accordance with this judgment, judges will have to have the last word as part of that Commission – perhaps through an express veto power.

For the reasons I have provided above, I believe that the central claim of the majority, upon which all else turns, is unsubstantiated; and going forward, it constricts possibilities for a new commission by requiring judicial primacy in appointments. Perhaps this is what the constitutional scheme requires, but if so, it needed a strong defence. The majority has failed to provide that.

Many may feel that the Judiciary – and constitutional democracy in India – has dodged a bullet, and nipped the spectre of fascism in the bud. There might be some truth to that claim. But for those who feel that the collegium has been built upon foundations of naked power, and maintained through rhetoric, smoke and mirrors, this judgment will offer cold comfort. There might be some truth to that as well.

Debating the NJAC: Round-Up and (Tentative) Conclusions

Over the last two weeks, on this blog, we have had an extensive debate about the various aspects of the National Judicial Appointments Case, where the validity of the 99th Amendment and the National Judicial Appointments Commission Act have been challenged. Recall, once again, that 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.

In a set of powerful essays, Vishwajith, Suhrith, Ritwika, Malavika and Faiza have responded to my arguments that the 99th Amendment should be struck down. I am almost convinced, but not quite. Let me briefly highlight some of the key issues that have emerged.

On Article 124A, which replaces the collegium with the NJAC, there is consensus on two issues: first, that judicial independence is part of the basic structure, and secondly, that the nine-judge Second Judges Case binds the present five-judge bench. The Union’s argument is that the Second Judges Case merely interpreted the text of the old Article 124 in a certain way – “consultation” to mean “concurrence”, which was the basis of the collegium. By the 99th Amendment, the Parliament has replaced that text, and with it, the Supreme Court’s interpretation. The petitioners, on the other hand, argue that in The Second Judges Case, the Court clearly held that it was judicial primacy – via the collegium – that was part of the basic structure. Which side of the issue you come down on, therefore, depends upon your reading of The Second Judges Case, and the cases before and after it, with respect to three questions:

(a) Is judicial independence affected by the nature or manner of judicial appointments?

(b) If yes, then did the Second Judges Case hold that judicial primacy in appointments is part of the basic structure, because it preserves judicial independence?

(c) If yes, then did the Second Judges Case also hold that judicial primacy in appointments is a necessary requirement for the protection of judicial independence?

In my submission, the answer to all three questions is yes, leaving the present Constitution Bench with no option but to strike down Article 124A. Let me stress once again that this is not a defence of the collegium. I am in complete agreement with Suhrith, that the Court ought to have referred the matter to an eleven-judge bench, to decide without being constrained by The Second Judges Case. But it didn’t. And I would submit that it ought not now to compound an error by overturning precedent, and going against the grain of stare decisis.

With respect to Article 124C, I argued that by delegating the framing of regulations governing the functioning of the NJAC to Parliament through its ordinary law-making process, the 99th Amendment has transformed constituent power into legislative power, and this is a violation of the separation of powers. Two arguments were made in response: first, that the separation of powers exists horizontally (i.e., you cannot take power away from one State wing and transfer it to another, as was being done in the case of tribunals (judiciary to executive)), and secondly, a history of the constitutional scheme indicates that parliamentary control over judicial appointments is consistent with the separation of powers.

With respect to the first argument, I would contend that the verticality of the separation of powers is a necessary consequence of its more familiar, horizontal understanding. As I argued in my essay, the constitutional scheme distributes power among the three state organs – the legislature, the executive, and the judiciary – while at the same time, it retains certain powers within the Constitution. Just as the powers of one of the three wings of State cannot be aggrandised by redistributing inter se, by the same logic, it cannot be aggrandised by taking from the Constitution and giving it to that wing. To put it in less jargon-y terms: until now, the procedure for judicial appointment was located within the Constitution. Any change could be made only through a constitutional amendment – i.e., by Parliament exercising its constituent power through a super-majority. A good example of this is the 99th Amendment itself. But what Article 124C effectively does it to exercise a one-time constituent power of amendment, in order to delegate all future changes to the parliament through its ordinary law-making process. Thus, it takes from the constitutional scheme and gives to the Parliament, thereby aggrandising the power of the Parliament at the relative expense of the judiciary and the executive. To take a concrete example – suppose that tomorrow, Parliament amends the NJAC Act and establishes a quorum of three members, or gives the Law Minister a permanent veto? I’m not necessarily arguing that this is unconstitutional – but I am arguing that it has to be done through an amendment, not through law.

The second point – that Parliamentary control over appointments is part of the constitutional scheme – is harder to answer, because if true, it undermines my entire argument. Admittedly, there is no rigid separation of powers under the Indian Constitution. We have a flexible scheme, which is accommodative of a little tinkering around the edges. If Parliamentary control is structurally consistent with the constitutional scheme, then clearly, the manner in which the 99th Amendment redistributes power cannot be held to violate the separation of powers. It merely redistributes power within permissible contours.

I would maintain, however, that the old Article 124 was very clear on the point. Appointments were to be made through a consultative process between the executive (President) and the judiciary. The 99th Amendment transforms that entirely, making the Parliament supreme, by giving it law-making powers in a way that can completely erase the judiciary’s role (e.g., under Article 124C, framing a law that gives the law minister a veto). My analogy with Articles 53 and 54 – imagining a hypothetical where the parliament amends the provisions for electing the President, abolishes the electoral college, and delegates the issue to parliamentary law – substantiates the contention. For these reasons, I think that my argument on the separation of powers holds, although I admit it is a very close question. I still think that the Supreme Court ought to strike down 124A on the basis of the binding ratio of The Second Judges Case, and Article 124C on the basis of the separation of powers, but I do not think that a contrary, well-reasoned judgment would leave much to complain about.

There have also been conflicting views on the issue of whether, if the Supreme Court were to strike down the 99th Amendment, the 99th Amendment would revive. One argument is that by failing to specifically refer the issue to a larger bench in The Property Owners Case, the question has impliedly been settled in favour of revival. As against this, it has been argued that the question requires adjudication, since the Property Owners Case – so far – has been silent it; and that in any event, the question of revival in the case of Article 31C, which merely allowed an immunity to Parliament (and is the subject of the Property Owners Case), is very different from the question of revival in this case, where an entire constitutional apparatus has been replaced.

Will the Court go that far, however? My own feeling is that the Supreme Court will not do something as (politically) bold and risky as striking down the 99th Amendment altogether. I suspect it will strike down the NJAC Act, while reading in guidelines into Article 124A on the lines suggested by Chintan, in his essay: maybe a veto power for the CJI, further specifications for the “eminent persons”, and/or the requirement of written reasons for rejecting a nominee. I personally think that this would amount to an illegitimate rewriting of a Constitutional amendment, but as the last twenty years have shown, the Courts’ power to issue guidelines is more or less untrammeled. Of course, I am speculating in the dark – the Court might actually strike down the Amendment, just as it may well uphold everything.

The struggle between the judiciary and the executive/legislature has marked much of India’s political history after over the last forty-five years. Whatever the Supreme Court decides now, it will have important ramifications in the years to come; and whatever it decides, I doubt whether we will have heard the last of it!

 

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A thematic list of all the essays debating the NJAC case on this blog is as follows:

The Second Judges Case

1. Akhil’s essay, arguing that the Second Judges Case was wrongly decided, and that the collegium is unconstitutional

Article 124A

2. My essay arguing that Article 124A violates the basic structure because of the Second Judges Case (Parts One and Two)

3. Vishwajith’s response, arguing that Article 124A is constitutional, on a contrary reading of the Second Judges Case (Parts One and Two)

4. Suhrith’s response, arguing that 124A is constitutional, because judicial primacy is not part of the basic structure

5. Ritwika’s essay on the “eminent persons” to be appointed to the NJAC

Article 124C

6. My essay arguing that Article 124C amounts to impermissible delegation of constituent power, violates the separation of powers, and should be struck down.

7. Malavika and Vishwajith’s response, arguing in favour of Article 124C on the basis of separation of powers

8. Ritwika and Faiza’s response, arguing that parliamentary control over judicial appointments does not violate the basic structure (Parts One and Two)

Remedies

9. Chintan and Rahul, arguing (separately) about the remedy the Court might craft, and the possible implications.

Revival

10.  Sarangan’s essay, arguing that the collegium will revive if the SC strikes down the 99th Amendment

11. Vasujith’s response, arguing that the question of revival must be separately adjudicated

12. Sanjay Jain’s essay on the philosophy of revival

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My thanks to all those who took their time out and contributed to the debate. Hopefully we can make this a regular thing for big cases!

Debating the NJAC: The Philosophy of Revival (Guest Post)

(In the final substantive essay of our two-week long debate on the NJAC, Professor Sanjay Jain examines the issue of revival from a jurisprudential perspective.

A round-up post will follow tomorrow)

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The question as to whether the doctrine of revival can be applied to deal with unconstitutional constitutional amendments is still res-integra. This question does not only involve the relationship between legislature and judiciary, but it also has a bearing on the doctrine of separation of powers. In terms of Hartian jurisprudence, this debate can be characterized as involving the clash between rule of adjudication and rule of change.

Can the judiciary, by resorting to the rule of adjudication, unilaterally effect a change in the law, in the absence of participation from legislature via the rule of change? In my submission, the position in India is extremely inconsistent. Let me illustrate. In Minerva mills, Supreme Court declared the 42^nd amendment of the Constitution, that extended immunity to laws promoting all directive principles against the challenge of violation of fundamental rights guaranteed by articles 13,14, 19 and 21 to be unconstitutional and it confined the scope of the immunity to the promotion of articles 39 (b) & (c).

What is the reality now? Look at the text of the constitution. It shows that legislature has not taken cognizance of this decision and that the language of article 31C is the same as it was after the 42^nd amendment and prior to the Minerva mills judgment. In other words, the legislature has not translated the law laid down in Minerva in article 31C. Nevertheless, it is argued in some quarters that, with the decision of Minerva, amended article 31C was voided and pre-amended article 31 C got revived. But this is far from clear. The Court has not conclusively dealt with the doctrine of revival. Besides, the impact of the amendment in the Constitution made by the parliament, on the pre-amended text is also to be examined. Is it possible to argue that by resorting to rule of adjudication, court both invalidated the amendment and revived the earlier text? Would it not amount to arrogation of legislative power by the court unto itself? One possible answer to these questions may be that, the court has not revived the pre-amended text, rather it has merely adhered to the interpretation of Article 31C placed on it by 13 Judge Bench of Supreme Court in Kesavananda Bharthi case. This argument can be defended on the rationale that the width of the powers of parliament is not absolute and is subject to constitutional limitations including that of basic structure and hence any exercise of power exceeding this limitation is non-est and would not have any impact on the previous interpretation of the court. Going by this logic, since the exercise of power in amending article 31C by way of the 42^nd amendment was infructuous, there is no question of any revival and the old law (i.e. pre-amendment law) would govern the field.

Let us analyze whether the same logic would govern the case of the 99^th amendment of the Constitution and NJAC Act.

In order to deal with this issue, it has to be first ascertained whether the analogy between article 31C and articles 124A, B, and C of the 99th Amendment, and the NJAC Act, is appropriate. It is possible to argue that the analogy is misplaced because in a Hohfeldian sense, article 31C is merely an immunity-conferring provision. As a consequence of this provision, the parliament and the state legislatures have only acquired immunity for some of their actions against a challenge based on certain fundamental rights; whereas after the 99^th amendment, Article 124A, B and C along with NJAC act has resulted in the creation of a set of complex and radically different power conferring rules. It has not only nullified the collegium system, which was read into article 124 by way of interpretation in Judges 2 and 3 cases by the Supreme Court, but it has also introduced an entirely new machinery to appoint new judges. Thus, upon a bare perusal of these provisions, it is evident that Articles 124A, B, C and NJAC Act are a set of power conferring rules and have made qualitative changes in the constitutional process of appointment of judges. Indeed these changes are both procedural and substantive. More importantly, the NJAC act by introducing a national Judicial Appointments Commission, has not only discarded the collegium system all together, but through this enactment, the parliament has also seriously eroded the judicial domination in the process of appointment of judges by doing away with the element of judicial primacy in case of difference of opinion between the members of the newly created NJAC. In such a scenario, it would be stretching the imagination to imply that upon voiding of 99^th amendment and NJAC Act, the pre-amendment law would revive. As a matter of fact, pre amendment law died with the parliamentary enactment of 99^th amendment and NJAC act. Although the court has the power by way of judicial review to invalidate any constitutional amendments and legislations alike, from where would it derive the power to fill the vacuum created by the void as a result of its own decision?

However, it is an altogether different ball game when it comes to Article 31C. Article 31C did not create any new machinery, nor did it provide any additional powers to the parliament or state legislatures. It merely made the exercise of legislative power for promotion of certain directive principles immune from the challenge of certain fundamental rights. As a result, if Article 31C is struck down, it would only result in doing away with the immunity provided to the parliament and state legislatures against the challenge of certain fundamental rights in respect of exercise of legislative power by them to promote certain directive principles. Thus, it would neither discount the powers of the legislature nor, would it do away with any machinery. This is in sharp contrast with the voiding of Articles 124A, B, C and NJAC act which would not only result in doing away with the existing machinery but, would also take away the legislative powers of the parliament. On the other hand, even in the absence of Article 31C, a mere immunity, parliament and state legislatures would still be able to promote directive principles by making laws in the light of explicit mandate of Article 37 of the Constitution of India; whereas, it would become impossible for the state to make appointment of judges in absence of any machinery as the existing machinery would have been voided by the court and machinery prior to the present amendment, has already been done away with by the amending body and parliament, by way of amendment and NJAC act. This would be a case of constitutional vacuum vis-à-vis appointment of judges.

However, it is equally possible to argue against the so called constitutional vacuum. It is too banal a proposition to dispute the law making authority of the Supreme Court. In numerous cases, including the Vishakha judgment, Supreme Court has evolved guidelines as ad-hoc mechanisms to fill in the legislative void and the present scenario is not any different from the earlier cases. As a custodian of ‘constituent power’ and guardian of ‘basic structure’ of the constitution, it is plausible for the Supreme Court not only to void ‘unconstitutional constitutional amendments’ but also to put in place ad-hoc norms to fill the legislative vacuum resulting from the invalidation of the amendments.

To sum up, it is possible to argue on both sides of the debate, however it would be appropriate if judiciary and legislature collaborate in the deployment of rule of adjudication and rule of change respectively. It would lead to stability if the Supreme Court takes a call on doctrine of revival and parliament clarifies its position on article 31C by making appropriate amendments. Overuse of both, implication and the device of reasoning by analogy, would adversely affect the stability of the legal system and also create room for unwarranted speculations and conjectures. However, till the judiciary and parliament act, the anxiety continues and as observers we have to merely keep on guessing.

Debating the NJAC: Framing a Remedy (Guest Post)

(What is the Supreme Court finds that the 99th Amendment and the National Judicial Appointments Commission, in their present form, are constitutionally unsatisfactory, but also does not wish to strike them down? In the first part of this guest post, Chintan Chandrachud explores what the Court might do to bring the 99th Amendment in line with the Constitution. In the second part, Rahul Bajaj discusses the interaction between Court guidelines and Article 124C of the 99th Amendment.)

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After thirty-one days of argument, a five-judge bench of the Supreme Court has reserved judgment in amongst the most significant constitutional cases before the Court in recent years. Since the Supreme Court’s decision in the Second Judges Case in 1993, appointments to the Court have been made through what has come to be known as the ‘collegium’ system – in which the three senior most judges of the Court play a decisive role in the appointments process. The collegium system suffered increasing criticism, and Parliament attempted to replace it with an appointments process led by a ‘National Judicial Appointments Commission’ (NJAC) through a constitutional amendment and a statute that gives effect to the amendment. The amendment provides that the NJAC will consist of six people – the Chief Justice of India, the two senior most judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for three-year terms by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha and are not eligible for renomination. The Supreme Court has been called upon to decide to constitutionality of the amendment and the statute.

This post will not consider the constitutionality or the merits of the collegium system and the NJAC. Although that is a most significant matter, it has been considered elsewhere (see, for example, here and here on this blog). It will explore a different, less studied, aspect of the case – the remedies available to the Supreme Court. As with the NJAC case, on most occasions on which law is challenged on the basis that it is unconstitutional, the challenge is conceived in terms of a binary – whether to strike down or not to strike down the law. The matrix of remedies available to the court is far more complex than this. In fact, although I have not come across any empirical data on this issue in India (see evidence from the UK here), the most common response to a finding of unconstitutionality is not to strike down the unconstitutional law, but to interpret it in a way that is consistent with constitutional requirements.

Therefore, it is highly problematic to take the premise that: (i) the court finds the constitutional amendment unconstitutional, to mean that (ii) the court will strike down the amendment. Instead, the Supreme Court has several intermediate options falling short of the strike down power before it. In this post, I consider three such options – although this should not be taken to mean that these options are mutually exclusive, or, for that matter, collectively exhaustive. These interpretive possibilities can be divided based on whether they address the composition of the NJAC or the functioning of the NJAC, and it is in this sequence that they will be considered.

1.Composition of the NJAC

Defining ‘eminent persons’ more narrowly

Amongst the arguments that the petitioners have made is that the constitutional amendment makes no attempt to define who the two eminent persons on the NJAC will be. This, it is argued, can give rise to two sets of problems. The first is a ‘malice’ based argument – that the executive could seek to nominate people with favorable political leanings. The second is more of a ‘recklessness’ based argument – that the executive could seek to nominate people who clearly lack the credentials to judge the performance of candidates. The Supreme Court could seek to eschew these concerns by specifying a set of criteria – or qualifications – that eminent persons would need to hold. Conversely, the Court could prescribe a set of disqualifications – for instance, that those who are charged with serious criminal offences will not be considered ‘eminent’.

Modifying the ‘eminent persons’ appointments process

 The constitutional amendment provides that the eminent persons on NJAC are to be appointed by a Committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The argument here is that the politicians could combine to nominate a person who, in the opinion of the Chief Justice, lacks the credentials to be part of the NJAC. One way in which the Supreme Court may seek to avoid this situation is by interpreting the provisions to the effect that the Chief Justice has a veto power in the appointment of eminent persons. This would mean that the Chief Justice would always need to be in the majority, and a 2-1 decision, with a dissenting note from the Chief Justice, would not result in an appointment.

2. Functioning of the NJAC

An exclusive veto power for the judges

 Neither the constitutional amendment nor the statute giving effect to the amendment make it clear how the six-member NJAC is expected to take its decisions. The ideal scenario, presumably, is for decisions to be made by consensus. But where consensus is not possible, the alternative is likely to be a majority decision procedure. The statute specifies that no person shall be recommended for appointment to the Supreme Court if any two members disagree with the appointment. The argument against this requirement is that both sides – the judges and the non-judges – have a veto power over appointments. Arguably, the Law Minister together with one or more of the eminent persons could exercise their veto against independent-minded candidates. In order to grant the judges a degree of primacy in the process, the Supreme Court could read down this provision as applying only to the judges. This would, in other words, mean that assuming that all six members of the NJAC participate and vote, a successful appointment would require the concurrence of at least two of the three judges on the Commission.

There are many reasons for which the middle road – constitutional rights-compliant interpretation – seems intuitively appealing. It would probably enable all sides to claim victory. The government could claim that its amendment secured the Court’s stamp of approval, the petitioners could claim that they succeeded in having important safeguards infused into the appointments process, and the Court could send the message that it has effectively protected constitutional rights without thwarting the democratic will. A legislative sequel or pushback from Parliament would be much less likely in the event of an interpretive solution than if the constitutional amendment were struck down.

Nevertheless, the Court should be conscious of the risks associated with radically modifying the effect of the constitutional amendment. A fairly recent attempt at modifying the effect of a law (in which the provisions for appointment of Information Commissioners under the Right to Information Act 2005 were recast) came under severe criticism, following which the Supreme Court stepped back from its judgment in a review petition (for analysis, see here). Most importantly, some of the interpretive possibilities articulated here may produce an appointments process that closely resembles the existing collegium system. Thus, the NJAC could become the collegium in disguise – in which case, the Supreme Court would have successfully struck down the amendment without being transparent about doing so.

(Chintan Chandrachud is a PhD Candidate at the University of Cambridge)

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(The second part is by Rahul Bajaj)

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It is submitted that the Supreme Court can address all the arguments against the 99th Amendment in a cogent manner without striking down the entire framework as unconstitutional and thereby avoid throwing the baby out with the bathwater. Let us examine how it can assuage the unease of those who question the constitutionality of the new dispensation.

First, with respect to the first argument, the Court can read into Article 124A a specific set of guidelines in accordance with which the eminence of persons to be appointed to the NJAC can be judged. More specifically, by delineating a set of factors which would be indicative of the persons’ vast knowledge of the law, impeachable integrity, lack of political affiliations and sustained and enduring commitment to public service and justice, the Court can effectively put to rest the fear that the appointment process would be dictated by extraneous political considerations, ulterior motives or the whims and fancies of the 3-member committee.

Similarly, with respect to the second argument, there are at least 2 conceivable solutions that the Court can adopt to bring the exercise of veto power in line with the values of the Constitution. First, it can set out the parameters in accordance with which the veto power can be exercised, such as the need for those exercising that power to put forth cogent evidence that can bring into question the integrity and competence of the potential appointee in support of their stance. Second, in order to preserve judicial primacy, the court can give the CJI, as the chairman of the NJAC, the power to overrule the veto in exceptional cases by putting forth cogent and compelling reasons for the same.

Finally, it is submitted that if the working of the NJAC is altered in the ways mentioned above, the argument that it undermines the independence of the judiciary would not pass muster for two reasons. First, as the first two Judges’ Cases unequivocally indicate, the focus of the judiciary has always been on highlighting the centrality of the role of consultation in the appointment process. Not only would the new framework institutionalize that desire in a far more well-structured and cohesive manner than has ever been done before, but the inbuilt checks in the new regime would enhance, as opposed to undermining, the independence of the judiciary. Second, the alterations that I have suggested would help create a robust bulwark against the arbitrary use of power which is the only way in which the avowed objective of judicial independence can be achieved.

Possible Constitutional Impediments to the Implementation of the Proposed Solution

In order to implement this solution, the judiciary would have to structure its scope and contours in such a way as to bring it in line with Article 124C of the Constitution. Article 124C reads as follows: “Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.” As Article 124C expressly authorizes Parliament and Parliament alone to delegate to the NJAC the power to determine the procedures and parameters governing its functioning, the argument goes, the issuance of judicial guidelines on these issues would not only run counter to the express mandate of Article 124C, but would leave Parliament with no meaningful power to structure the working of the NJAC. I would submit that such an argument would not hold water for at least 2 reasons. First, while it is true that Article 124C authorizes Parliament to structure the working of the NJAC in exercise of which Parliament enacted the NJAC Act, the issuance of the guidelines that I propose would be nothing more than an interim measure aimed at filling the vacuum that Parliament has created by failing to put in place any objective parameters to govern either the appointment of eminent persons or the exercise of veto power. Put differently, these guidelines would be issued by the judiciary in furtherance of its bounden duty to construe any legislative action harmoniously with the Constitution and would not, in any way, deprive the Parliament of the power expressly granted to it under Article 124C. Ergo, Parliament would be free to incorporate, at any time of its choosing, the guidelines pertaining to the determination of eminent persons issued by the judiciary into Article 124A and the guidelines with respect to the exercise of veto power into the NJAC Act. It would also be free to modify those guidelines or put in place other safeguards in order to attain the fundamental objective of making the process of selection of eminent persons and the exercise of veto power less arbitrary and unfair. The power of the Supreme Court to issue guidelines in the existence of a legislative vacuum despite express constitutional provisions authorizing the Parliament alone to frame laws on the issues in question is best epitomized by its decision in the celebrated case of Vishaka v. State of Rajasthan where the Court issued a set of concrete guidelines for the protection of working women from sexual harassment at the workplace. Even though Article 51(c), Article 253 and entry 14 of the Union List in the 7^th Schedule exclusively empower Parliament to frame laws to give effect to India’s commitments under international treaties, the Court decided to give effect to those commitments through the issuance of its guidelines to fill the void created by Parliament. Second, Article 141 and 144 impose a mandatory obligation on all authorities, civil or judicial, to follow the directions issued by the Supreme Court. Therefore, I would submit that the NJAC would be bound by the guidelines issued by the Supreme Court until Parliament makes express provisions to regulate the election of eminent persons or the exercise of veto power. If the 99^th amendment or the NJAC Act had contained express provisions to address these two issues in a manner inconsistent with the Constitution and the judiciary had then issued guidelines to bring those provisions in line with the Constitution, the argument that such a step by the judiciary amounts to rewriting express statutory or Constitutional provisions may have passed muster, but since the two acts are completely silent about the parameters governing the exercise of veto power or the selection of eminent persons, the judiciary would be merely discharging its constitutional obligation in construing the new regime in a manner consistent with the Constitution. This would be a mere exercise of judicial pragmatism or, at most, a form of judicial activism actuated by the twin goals of preventing a constitutional crisis and ensuring that the process of judicial appointments does not suffer from the vice of arbitrariness.

In sum, it is a widely accepted proposition that the collegium system entirely failed to achieve the objectives that it was set up for because of lack of transparency, absence of valid parameters for the appointment of members of the collegium as well as absence of objective criteria for the appointment of judges. This being the case, it would be in the fitness of things for the judiciary to imbue the consultative and transparent framework that the legislature, in its collective wisdom, has sought to institutionalize for the appointment of judges with the values that would bring it in line with the Indian Constitution.

(Rahul Bajaj is an intern at the Vidhi Centre for Legal Policy)

Debating the NJAC – Article 124C, Excessive Delegation, and the Separation of Powers: A Response – III (Guest Post)

(Rounding off our debate about Article 124C of the Constitution, in this second part of their two-part essay, Ritwika Sharma and Faiza Rahman defend its constitutionality.)

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In the first part of our defence of Article 124C, we argued that the said provision is neither violative of the principle of separation of powers nor vests a process which was hitherto enumerated under the Constitution within the contours of a law enacted by Parliament. In the second part of our defence, we argue that Article 124C cannot be challenged for suffering from the vice of excessive delegation insofar it delegates the power to frame regulations on the NJAC. The petitioners had, on occasions more than one, challenged Section 12 of the NJAC Act for conferring the NJAC with the power to frame regulations on a wide range of aspects pertaining to the functioning of the NJAC. An extensive discussion on the contours of delegated legislation has already taken place on this blog. Our defence of Article 124C, as well as the NJAC Act, is premised on certain specific aspects, as following:

First, the NJAC does not have unguided power to frame regulations under the scheme of the NJAC Act. It was specifically averred by the petitioners that the NJAC Act empowers the NJAC to formulate regulations in respect of criteria of suitability, other procedure and conditions for selection and appointment of judges to the higher judiciary. It has been rightly contended that one of the underlying principles for valid delegation of legislative power is that the legislature cannot delegate its essential legislative function. An equally important principle with regard to delegation of legislative principle was laid by the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516:

“The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates…” [para 26]

Similarly, the Supreme Court held in K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1:

“Law is settled that the court shall not invalidate a legislation on the ground of delegation of essential legislative functions or on the ground of conferring unguided, uncontrolled and vague powers upon the delegate without taking into account the Preamble of the Act as also other provisions of the statute in the event they provide good means of finding out the meaning of the offending statute. The question whether any particular legislation suffered from excessive delegation, has to be determined by the court having regard to the subject-matter, the scheme, the provisions of the statute including its Preamble and the facts and circumstances and the background on which the statute is enacted. See Bhatnagars & Co. Ltd. v. Union of India [AIR 1957 SC 478] and Mohmedalli v. Union of India [AIR 1964 SC 980]” [para 60]

Thus, the lack of guidance to the NJAC to frame regulations is a pertinent factor while addressing the contention on excessive delegation. It is firmly argued that the NJAC’s power to frame regulations under Section 12 of the NJAC Act is not unguided or arbitrary. Under sub-clause (c) of the newly inserted Article 124B of the Constitution, the NJAC is under a duty to “ensure that the person recommended is of ability and integrity”. Under Section 5(2), the NJAC shall recommend a candidate for appointment as a Judge of the Supreme Court on the basis of “ability, merit and any other criteria”. Sections 6(1) and 6(3) of the NJAC Act prescribe similar guidance for appointment of the Chief Justice and other judges of the High Courts. Correspondingly, Sections 12(2)(a) and (c) of the NJAC Act empower the NJAC to frame regulations for the criteria of suitability with respect to appointments, and other procedure and conditions for selection and appointment of Judges of the Supreme Court and High Courts. Under Section 12(2)(a) and (c), the NJAC can frame regulations with respect to criteria of suitability with respect to appointment of a Judge of the Supreme Court, and the High Court, respectively. In light of the principle of ejusdem generis, it can be safely argued that the power of the NJAC to frame regulations with regard to criteria of suitability is not unguided or unfettered. The Supreme Court in Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 explained the principle of ejusdem generis in the following words:

“…The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified…” [para 52]

The criteria of ability and merit, which find mention in Sections 5(2), and Sections 6(1) and 6(3) belong to a genus and are indicative of qualities that are essential for performing the task of a judge. The NJAC is to draw guidance from these words and specify “any other criteria” of a nature akin to the criteria specified by Parliament. Upon application of the rule of ejusdem generis, the phrase “any other criteria” would take colour from “ability” and “merit”. This would act as a safeguard against the NJAC laying down arbitrary criteria for appointment of judges. By virtue of the application of the principle of ejusdem generis, it is argued that Section 5(2), Sections 6(1) and 6(3) and Sections 12(2)(a) and (c) of the NJAC Act do not suffer from the vice of excessive delegation. Section 12 of the NJAC Act is not an instance of the Parliament having abdicated its essential legislative function to the NJAC. Parliament has laid down its policy with sufficient clarity, on the basis of which the NJAC is expected to operate.

Secondly, the approach adopted by the NJAC Act is in line with international best practice with regard to appointment of judges. Even the Constitutional Reform Act, 2005 (CRA 2005) of the United Kingdom, does not lay down any detailed suitability criteria for appointment of judges to the Supreme Court. Quite like the originally enacted Article 124, Section 25 of the CRA 2005 lays down eligibility criteria for appointment of a person as a judge of the Supreme Court (which includes criteria such as having held a judicial office for a period of at least 2 years, been a qualified practitioner for a period of at least 15 years, etc.). The selection process for appointments finds enunciation under Section 27 of the CRA 2005 which, in its sub-section (5), mandates that “Selection must be made on merit.” Evidently, CRA 2005 has only enumerated eligibility criteria for appointment of judges of the Supreme Court and it leaves wide discretion to the selection commission to assess the merit of a candidate by not enumerating the indicators of merit. In fact, the Supreme Court selection commission had by itself devised an “Information Pack” which enumerated the criteria for appointment of judges. In Part I of our defence of Article 124C, we had presented a similar position with regard to the original Article 124 which only laid down eligibility criteria for appointment of judges while leaving the assessment of suitability largely to the Memoranda of Procedure.

Similar has been the experience in the Republic of South Africa which also envisages a commission for the selection of Chief Justice of its Constitutional Court and the President and Deputy President of its Supreme Court of Appeal (the appointing body is called the Judicial Service Commission). This Commission also nominates the names of individuals who are considered for appointment as other judges of the Constitutional Court. Article 178(6) of the Constitution of the Republic of South Africa states:

“The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.”

Evidently, the Constitution of the Republic of South Africa, like the CRA 2005 does not lay down any specific criteria pertaining to assessment of the suitability of a candidate for appointment and the Judicial Service Commission is given wide discretion in formulating its procedure vis-a-vis the appointment and selection process adopted by them. The illustrative experiences of the UK and South Africa clearly indicate that wide discretion is given to their appointment commissions as regards the criteria for suitability for appointment of judges. Hence, the authority to determine the suitability criteria which has been given to the NJAC under Sections 5, 6 and 12 of the NJAC Act lies in sync with international best practices pertaining to judicial appointment commissions.

Lastly, Article 124C only confers such regulation-making power on the NJAC as is necessary to carry out its procedure. The delegation of power to formulate rules/regulations prescribing procedural matters has been well-recognised. For instance, in Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth (1984) 4 SCC 27, the Supreme Court held:

“So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act….” [para 14]

In this regard, one of the provisions that the petitioners specifically challenged the validity of was Section 10(2) of the NJAC Act which lays down that the NJAC shall observe such rules of procedure, including the quorum at its meeting, as it may specify by regulations (under Section 12(2)(i)). The contentious issue was whether the NJAC can determine its own quorum by means of regulations. Quite unsurprisingly, the NJAC Act is not the only statute which comprises such a provision. Section 10(1) of the Insurance Regulatory and Development Authority, 1999, Section 8(1) of the Telecom Regulatory Authority of India Act, 1997 and Section 7(1) of the Securities and Exchange Board of India Act, 1992 are just some of the various statutes that envisage the body being constituted by these Acts as also the entity which lays down the quorum. Yet again, the NJAC Act does not create a legislative innovation in this regard.

It also deserves mention that laying down of voting requirements lies within the province of specifying procedure and the even the Parliament is well within its authority to lay down specifications with regard to the same by means of Parliamentary law. In any event, it is well-recognised that the requirement with regard to voting majorities is procedural, as evident from Kihoto Hollohon v. Zachilhu, 1992 Supp (2) SCC 651:

“The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one…..” [para 65]

Thus, a provision such as Section 6(6), or the second proviso to Section 5(2), which lay down the voting requirements to be followed in the NJAC, are perfectly within the competence of the Parliament and cannot be challenged as an instance of excessive delegation.

Conclusion

The policy with regard to the NJAC Act is abundantly clear. The Statement of Objects and Reasons of the NJAC Act explicitly contemplates “a broad based National Judicial Appointments Commission should be established for making recommendations for appointments of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role for the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.” With the policy in place, the NJAC by means of regulations would only fill in relevant details with regard to the procedure to be followed by it. By no stretch of imagination can such regulation-making be challenged for being an excessive delegation of power. Hence, a challenge to Article 124C insofar it delegates the regulation making on the NJAC is misplaced.