The NJAC Judgment and its Discontents

In a landmark judgment today, the Supreme Court struck down the 99th Constitutional Amendment for being ultra vires the basic structure of the Constitution. The 99th 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 99th 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 99th 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!

 

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

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)

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 42nd 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 42nd 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 42nd 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 99th 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 99th 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 99th amendment and NJAC Act, the pre-amendment law would revive. As a matter of fact, pre amendment law died with the parliamentary enactment of 99th 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.)

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)

(The second part is by Rahul Bajaj)

 

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 7th 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 99th 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.)

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.

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

(In a two-part series, Ritwika Sharma and Faiza Rahman respond to my essay on Article 124C, arguing that the provision is entirely constitutional)

Among the many contentious issues that engaged the attention of the Supreme Court in the NJAC case was Article 124C which has been alleged to be violative of the basic feature of the independence of the judiciary. It has also been attacked for entrusting the Parliament with a function that, till now, formed part of the Constitution.

On close scrutiny, it becomes evident that Article 124C empowers the Parliament in two respects: it commences with vesting Parliament with the legislative competence to regulate the procedure for appointment of Supreme Court and High Court judges. Thereafter, it provides the legal basis for the Parliament to empower the NJAC to lay down by regulations the procedure for discharge of its functions, manner of selection of persons and other matters considered necessary.

In Part I of our defence of Article 124C, it is argued that Article 124C cannot be held to be violative of the independence of the judiciary on the following grounds:

First, independence of the judiciary does not connote independence from Parliamentary law. In fact, this was a proposition that was expressly rejected by the framers of the Constitution. Due regard must be had to Article 50 in this context. Article 50, which is one of the Directive Principles of State Policy, states that “The State shall take steps to separate the judiciary from the executive in the public services of the State.

A brief glimpse into the drafting history of this Article would reveal that an amendment proposed by Prof. KT Shah which sought independence of the judiciary from Parliament as well, was expressly rejected by the Constituent Assembly. Prof. KT Shah moved the following amendment in the Constituent Assembly Debate dated 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 218):

Sir, I move:

That under Chapter IV of Part V, the following new article be added:-

“102-A. Subject to this constitution the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”

Prof. K.T Shah while proposing Article 102-A stated-

“In this amendment: it is not merely the separation of judiciary from the Executive, but also its independence, and I want it to be also separate from the legislature and the executive.

However, Prof. KT Shah’s proposed amendment was decisively rejected by the Constituent Assembly. Shri KM Munshi on 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 220-221) opposed the inclusion of Article 102A stating that:

“This Constitution is based on an entirely different principle, adopting the British Model. We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartment of powers have been rejected. That is with regard to separation of powers.

Evidently, the framers of the Constitution did not envisage the inclusion of a standalone article which would have enforced a strict separation of powers between the three branches of government. A construction of judicial independence which seeks independence from Parliament, or Parliamentary law would anyway be an anomaly given the framework of our Constitution. In fact, the scheme of the Constitution itself reveals that certain pertinent aspects pertaining to judicial functioning are regulated by Parliamentary law. Some illustrative examples of such laws are:

1. The Judges (Inquiry) Act, 1968 which regulates the procedure of investigation during the impeachment proceedings against a judge. This legislation emanates from the enabling Article 124(5) by virtue of which Parliament is empowered by law to regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4). An observation was made in this regard in Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 this Hon’ble Court:

Article 124(5) mandates enactment of a parliamentary law to regulate the investigation and proof of misbehaviour or incapacity of a Judge under Clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been enacted by the Parliament….” [para 24]

2. Similarly, Parliament has enacted the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 and the High Court Judges (Salaries and Conditions of Service) Act, 1954. The powers to enact both these laws can be respectively traced to Articles 125 and 221 of the Constitution. These provisions allow the Parliament to enact laws determining the salaries, pension and other privileges of Judges of Supreme Court (Article 125), and of the High Court (Article 221).

3. Under Article 138, Parliament may by law confer on the Supreme Court such further jurisdiction and powers with respect to any of the matters in the Union List. Consequently, Parliament has widened the jurisdiction of the Supreme Court by means of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

Similar provisions pertaining to other aspects of judicial functioning exist throughout Chapter IV of Part V (the Union Judiciary) and Chapter V of Part VI (the High Courts in the States) of the Constitution. Essentially, Article 124C empowers the Parliament to enact a law regulating the procedure for appointment of judges of the Supreme Court and High Court, something which is entirely within its legislative competence. It would be anybody’s case that the method to remove judges as well fixation of their salaries and conditions of service are aspects vital to the independence of the judiciary. These laws cited above are just as vulnerable to amendment by the Parliament as provisions of the NJAC Act would be. The framers of the Constitution could not have intended to compromise with the independence of the judiciary by vesting Parliament with the power to enact such laws. In fact, such provisions are reinforcement of the wisdom of the Parliament to enact laws which are not prejudicial to judicial independence. Clearly, regulation of certain facets of judicial functioning by means of Parliamentary law is not an innovation devised by Article 124C.

Secondly, it argued that Articles 124 and 217, as they originally stood, did not lay down the entire procedure for appointment of judges. The first limb of this argument hinges upon the crucial distinction between “eligibility” and “suitability”. Articles 124 and 217 only laid down “eligibility” criteria for appointment of judges which, at the most, are the minimum threshold criteria for filtering prospective candidates. The difference between “eligibility” and “suitability” was discussed in Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273:

At this stage, we may state that, there is a basic difference between “eligibility” and “suitability”. The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2)….” [para 39]

The Supreme Court further held in Mahesh Chandra Gupta

The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of “consultation”. Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu’s Commentary on the Constitution of India, 6th Edn., p. 234). Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like.” [para 41]

Articles 124(3) and 217(2) must be viewed against the backdrop of the distinction between “eligibility” and “suitability”, as enunciated upon in Mahesh Chandra Gupta. When Article 124(3) mandates that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (a) has been for at least five years a Judge of a High Court or of two or more High Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more High Courts in succession; or (c) is a distinguished jurist, in the opinion of the President, it only lays down the minimum eligibility criteria that need to be fulfilled for a person to be considered for appointment. Similarly, Article 217(2) lays down minimum eligibility criteria for appointment of a person as a judge of a High Court. Clearly, the framers of the Constitution found sufficient to only enumerate the “eligibility criteria” within the four corners of the Constitution. “Suitability criteria” would have to be located somewhere else.

The second limb of this argument addresses the issue of “suitability criteria”. Such criteria which are meant to assess the fitness of prospective candidates are considered in accordance with the Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India as well as the Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts, documents which have been agreed to jointly by the Chief Justice of India and the Ministry of Law and Justice. Considerations such as inter se seniority of puisne judges, and conditions such as medical fitness are some of the aspects which are to be considered under these Memoranda. For instance, for appointment of the Chief Justice of India, the Memorandum of Procedure for the Supreme Court lays down that:

Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.” [para 2]

In the Memorandum for High Courts also, seniority is considered to be a determining factor:

For purposes of elevation as Chief Justices the inter-se seniority of puisne Judges will be reckoned on the basis of their seniority in their own High Courts and they will be considered for appointment as Chief Justices in other High Courts when their turn would normally have come for being considered for such appointment in their own High Courts.” [para 3]

Hence, seniority is used as one of the criteria to determine suitability of a candidate under the Memoranda. The Memoranda, for both the Supreme Court and the High Courts lay down the procedure to be followed for appointment of the Chief Justice, Acting Chief Justice, permanent judges, additional judges, ad hoc judges and acting judges, as and when applicable. The Memorandum of Procedure for the High Courts also specifically lays down the procedure for transfer of a Judge from one High Court to another High Court. Keeping in view the framework of Articles 124 and 217, and the Memoranda of Procedure, it can be inferred that the framers of the Constitution did not find it imperative to include suitability criteria within the provisions of the Constitution. In fact, thus far, the task of laying down suitability criteria is being performed by the executive by means of these memoranda of procedure. It is difficult to imagine how the independence of the judiciary would be violated if this task is now entrusted to the Parliament under Article 124C.

In light of the above, it is submitted that Article 124C is not violative of the independence of the judiciary. In fact, it is an attempt to put flesh and blood into the skeletal structure that the 99th Amendment seeks to create. In the second part of this essay, we would proceed to argue that Article 124C is not an instance of excessive delegation, and falls within the permissible limits of delegated legislation.

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

(In the previous essay, I had argued that Article 124C should be struck down, because it violates the separation of powers and the independence of the judiciary, both of which are part of the basic structure. In this essay, Vishwajith Sadananda and Malavika Prasad respond to that claim, arguing that 124C is entirely constitutional).

The charge against Art. 124C is that the Parliament has abdicated its constituent powers, by delegating those powers to the legislature, i.e. the Parliament in its legislative capacity, and that such excessive delegation violates the principle of separation of powers. To contest this proposition, we argue that first, the nature of amending power itself requires it to be sovereign, and thus superior to the legislative, executive and judicial powers, and second, that separation of powers cannot possibly apply in the context of a power that is subordinate to another.

While Ray C.J. may have been on the minority on the specific point that constituent power is sovereign, in that it is “independent of the doctrine of separation of powers” (paragraph 48, Indira Nehru Gandhi vs Raj Narain), the proposition is not alien to our understanding of constituent amending power today. After Keshavananda and Indira Gandhi, the constituent amending power is only subject to the basic structure doctrine. In other words, an exercise of constituent amending power is not plenary or “sovereign”, akin to the constituent power to constitute a sovereign. This is because, while wielding constituent power to frame the constitution, the framers are bound by no constitutional constraints; they wield a sovereignty by which they validate the constitution (call this ‘original sovereignty’). This sovereignty is external in a manner of speaking, having been arrogated by the constituent body to itself, rather than conferred by a superior or sovereign authority or instrument. Necessarily then, it cannot be subject to any fetters, there being no fettering authority or instrument. This sovereign has plenary powers to author new political systems, forms of governance and a constitutive instrument.

Once constituted however, the political essence of the Constitution so created forms the basic structure of the Constitution. The basic structure can thus only be altered by an institution vested with ‘original sovereignty’, since it would amount to authoring a new political form. Since the constituent amending power finds its origin in Constitution of India, and since a power originating from an instrument cannot possibly be larger than the instrument creating it, even at its widest exercise, amending power under Art. 368 is inherently limited in extent, compared with the constituent power to frame a constitution. These constraints are neither externally imposed nor implied into constituent power. These constraints are the basic structure, as we understand it today.

The legislative, executive and judicial powers, akin to the constituent amending power, are powers that were created by an exercise of sovereign, plenary constituent power. To that extent, the legislative, executive and judicial powers can also be exercised only subject to the Constitution. However, it would be incorrect to suggest a likeness on all fronts, between these three powers and the constituent amending power. Constituent amending power is still the superior power in that an exercise of amending power under Article 368 can widen or constrict the extent or fields of judicial, executive or legislative power vesting in the wings of the State, so long as the basic structure is not destroyed. Consider, for instance, the amendments that have introduced whole new entries into List I of the Seventh Schedule (Entry 2A, and amended Entry 63 etc.), thereby significantly expanding the fields in which the Parliament is competent to legislate. It is this recognition of the superiority of the constituent amending power that underlies the impermissibility of conflating Parliament’s power under Art. 368 with its power under Art. 245.

 

 

SepPowers

 

It is also this superiority of the constituent amending power that impelled the Court in Indira Gandhi to prevent the amending power from being used to carry out judicial acts (as Art. 329A(4) sought to), such as voiding judgments and orders of Courts. The reasoning was not rooted in impermissibly upsetting the separation of powers vertically, between the constituent amending power and judicial power, by way of “delegation”. It was based in the impermissibility of divesting the High Court of its judicial powers, and then, worse still, not conferring that jurisdiction upon any other Court. (Para 201, Khanna’s judgment in Indira Gandhi), thus taking away the right to a free and fair election, and the remedy to challenge it (para 206). The right to a free and fair election was central to the democratic form of government, that is a part of our basic structure.

The logic of Hinds vs The Queen and Madras Bar Association vs Union of India, that converting judicial power to executive power upsets the separation of powers, would apply with equal force to conversion of constituent power to legislative power only if there existed a separation of powers vertically. There cannot possibly be a separation of powers (whether rigid or flexible) vertically, between constituent amending power and the three powers subordinate to it, as such separation is antithetical to the very power to amend. The power of amendment is only subject to the basic structure doctrine. Outside of the constraints posed by the basic structure, the power of amendment is plenary. Until we evolve a norm that constitutionalises the separation of powers vertically, between the amending power and other powers, and that too, to the extent that it becomes part of the basic structure of the Constitution, the prevalent understanding of the principle, as between the three equally situated powers cannot be sought to be pressed in force here.

Independence of the Judiciary

Art. 124C is next assailed on the ground that empowering the Parliament to enact laws on the procedure of appointments disturbs the independence of the judiciary. Article 124C which reads as follows:

124C. 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.”

Art. 124C must be viewed in the context of the provisions that empower the Parliament to enact laws generally: Articles 245 (which begins with the words “Subject to the provisions of this Constitution…”) and Article 246. The source of the power of the Parliament is thus the Constitution itself, and the amendment is not, and cannot, confer any new or additional powers. In exercise of the powers vested in it, the Parliament can enact laws in the fields enumerated in the Seventh Schedule; in this specific case, the Parliament is allowed the breadth of Entry 77 of List I. Thus, exercise of power under Art. 124C cannot possibly result in damage to the basic structure that is irremediable, being effected by way of a legislation, given that both the power to legislate as well as the fields of legislation were in the Constitution to begin with. Any argument that Article 124C could enable the Parliament to effectively undo the independence of judiciary is necessarily premised on the assumption that Articles 245-246 read with Entry 77 of List I are incapable, in and of themselves, to ensure the independence of the judiciary. Such a proposition obviously cannot be countenanced, as provisions of the Constitution cannot possibly be unconstitutional, for being destructive of the basic structure.

It is an interesting and noteworthy aside, that under the collegium system, the manner of appointments was in fact determined by two executive memorandums- the “Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court” and the “Memorandum Showing the Procedure for Appointment and Transfer of the Chief Justices of India and Judges of the High Court”, which are extra-constitutional instruments.

As for the claim that Article 124C violates the independence of the judiciary, the true nature of judicial independence under the Indian Constitution cannot be lost sight of. In India, in the context of separation of powers, we follow a system of checks and balances, with each wing ensuring that power does not get concentrated in the hands of the other wings.

At this juncture, it would be apt to revisit the constitutional debates on the question of separation of the judiciary from the legislature and its impact on judicial independence. On 23rd May 1949, KT Shah introduced an amendment which mandated the separation of the judiciary and the legislature on the grounds of preserving judicial independence. In reply to the introduction of the said amendment, KK Munshi was of the view:

“: …We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartments of powers have been rejected. That is with regard to separation of powers.

As regards the question of the independence of the Judiciary, which my Friend Professor Shah emphasised, ample care has been taken in this Chapter that the judicial system in India under this Constitution should be an integrated system, and that it should be independent of the Executive in so far as it could be in a modern State. The House will see as it proceeds to deal with this Chapter that once a Judge is appointed, his remuneration and allowances etc. remain constant. Further he is not removable except under certain conditions like a two-thirds majority of the two Houses… These are considered sufficient guarantees of the independence of the Judiciary throughout those countries which have adopted England as the model. These safe guards are there.”

Subsequently, the amendment was negatived.

Under our constitutional scheme, the judiciary has never traditionally been completely free from Parliamentary supervision. For example, the salaries of judges are governed by a law passed by the Parliament under Article 125. The impeachment of judges of the Supreme Court, under Article 124(5), is also governed by a law passed by the Parliament. It goes without saying that both these aspects have always been considered to have a central role in ensuring the independence of the judiciary, world over.

As one of us has argued before on this blog, the amendment will have to be tested on the basis of the degree or extent to which the independence of the judiciary is disturbed. From our analysis above, it becomes evident that Article 124C does not eviscerate the independence of the judiciary but only subjects it to Parliamentary supervision, in tune with our constitutional tradition.

(Disclosure: Vishwajith has been involved in assisting the Union of India in this case)

Debating the NJAC — Article 124C, excessive delegation, and the separation of powers

Over the last one week, we have debated the constitutionality of Article 124A of the 99th Amendment, which constitutes the National Judicial Appointments Commission. Let us now consider an equally important provision that the 99th Amendment seeks to insert into the Constitution – Article 124C.

Article 124C authorises the Parliament to 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.” This is in contrast to the old, un-amended Article 124, which laid out the entire procedure of judicial appointments within the Constitution itself (as interpreted by the Supreme Court in the Second Judges’ Case, 1993 (4) SCC 441). Consequently, under the old regime, the appointment process was part of the constitutional scheme (i.e., contained within the Constitution), and any change in the process of appointments could only be made through a constitutional amendment. The 99th Amendment – which introduces Articles 124A, B and C – is itself evidence of this fact. By contrast, under the new regime, a significant part of the appointments process will be shaped and structured by the Parliament through “regulations” – i.e., through the process of ordinary law-making.

It is well-accepted that Parliament acts in different capacities while amending the Constitution, and while passing ordinary legislation. The former is an exercise of constituent power, while the latter is an exercise of legislative power (Indira Nehru Gandhi vs Raj Narain, 1975 SuppSCC 1). Being a Constitutional amendment, Article 124C is therefore an exercise of Parliament’s constituent power, which delegates the (a significant part of the) procedure for appointment of judges to Parliament exercising its legislative power. Furthermore, Article 124C also authorises Parliament, while acting in exercise of its legislative power, to delegate in turn to an executive authority (the NJAC), the ultimate process of judicial selection. In this essay, I will argue that this form of delegation violates the basic structure of the Constitution by removing the core of the appointments process from the Constitutional scheme, and placing it within reach of ordinary legislation as well as executive action.

Let’s start with a hypothetical. Consider Articles 54 and 55 of the Constitution. Article 54 stipulates that the President shall be elected by an electoral college. Article 55 lays down detailed guidelines for the election, aimed at achieving parity of representation. Suppose that through a constitutional amendment, Parliament was to erase Articles 54 and 55, replace them with a new “Article 54A”, which stated: “Parliament shall regulate the procedure for the appointment of the President of India and such other matters as may be considered necessary by it”. I suspect many of us would find this amendment deeply problematic. To understand why, we need to take a detour through the principle of excessive legislative delegation, and then draw an analogy with Article 124C.

Excessive Delegation: Scope and Principles

The concept of excessive delegation arose in the context of ordinary legislation. In In Re the Delhi Laws Act, AIR 1951 SC 332, a seven-judge bench of the Supreme Court unanimously endorsed the proposition that parliament may not delegate “essential legislative functions” (although the judges differed about the outcome of the case). In his minority opinion (although not on this point), Kania CJI laid out the classic statement of law:

   “When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the characteristics of a legislature by itself… Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency… it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer.” (paragraph 11)

   As all the judges agreed, it was the “essentials” of the legislative function that could not be delegated. While conditional or subordinate legislation, i.e., powers conferred upon the executive that were either designed to give effect to the law, or ascertain facts as a pre-requisite for bringing the legislation into force, were allowed, conferral of “powers of legislation” was not. In Kania J.’s opinion:

     “… the Indian Legislature… could not create another body with the same powers as it has or in other words, efface itself.” (paragraph 17).

According to Justice Kania – citing American scholarship with approval – to survive this test, the standard must not be too indefinite or general. It may be laid down in broad general terms.” (paragraph 30) The distinction that is crucial to make – as enunciated by Taft C.J. in Hampton and Co. vs United States, 276 U.S. 394 (1928) – is between “the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law.” (paragraph 31)

The dictum in In Re Delhi Laws Act was subsequently refined. Broadly, there are two tests to determine whether legislation suffers from the vice of excessive delegation. The first is the “control test”, which was laid out by Justice Mathew in M.K. Paplah & Sons vs The Excise Commissioner, AIR 1975 SC 1007, where the learned Justice held that:

“[the]… laying of rules before the legislature is control over delegated legislationthe legislature may also retain its control over its delegate by exercising its power of repeal.” (paragraphs 18, 22)

Implicit in Justice Mathew’s formulation is the idea that Parliament must exercise a continuing supervision over the executive while the latter is exercising its delegated legislative powers. This was made explicit by Krishna Iyer J. in Avinder Singh vs State of Punjab, AIR 1979 SC 321, where he observed:

“… even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.” (paragraph 12)

The second test is the “functional test”, developed in detail by Justice Khanna in Gwalior Rayon Silk Mfg vs Asst. Commr. Of Sales Tax, AIR 1974 SC 1660. Referring to the American constitutional scholar, Willoughby, Justice Khanna observed:

   “The qualifications to the rule prohibiting the delegation of legislative power… are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities : (1) to determine in specific cases when and how the powers legislatively conferred are to be exercised and (2) to establish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the statutes are to be met, and the rights therein created to be enjoyed.” (paragraph 24)

He then observed:

“… in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. In other words, in order to avoid the pure delegation of legislative power by the creation of an administrative agency, the legislature must set limits on such agency’s power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity.”

The Scope and Nature of Article 124C

What is the relevance of this? I would contend that just as the legislature is not permitted to transfer or abdicate essential legislative functions to the executive, the parliament, in exercising its constituent power, is not permitted to transfer or abdicate its constituent functions to the legislature. This is because such an act would violate two of the basic features of the Constitution – separation of powers and the rule of law – and more specifically, Section 124C also violates the basic feature of judicial independence. Each of these issues will be discussed in the context of Section 124C.

Separation of Powers

It has been repeatedly held by the Supreme Court that the separation of powers is a basic feature of the Constitution. (Kesavananda Bharati vs State of Kerala, AIR 1972 SC 1461; Indira Nehru Gandhi vs Raj Narain) The precise character of the separation of powers in India – which commentators have often classified as a “flexible” separation instead of a “rigid” one – flows from the Constitution. In other words, the structure and allocation of powers between the three wings of State are determined by the Constitutional scheme. Consequently, it is not open to Parliament to transfer powers from one of the wings of State to another, even through a Constitutional amendment (because this would upset the Constitutional scheme of separation of powers).

The contention that Parliament, while acting in exercise of its constituent power of amendment, must respect the institutional structure and arrangement of the separation of powers, was upheld by in Indira Nehru Gandhi vs Raj Narain, in which it was argued that the 39th Amendment, which sought to retrospectively validate Indira Gandhi’s election result and bar it from judicial scrutiny, violated the basic structure. Before the Supreme Court, A.K. Sen, arguing in support of the 39th Amendment, stated:

     “The constituent power is independent of the doctrine of separation of powers. Separation of powers is when the Constitution is framed laying down the distribution of the powers in the different, organs such as the legislative, executive and the judicial power. The constituent power springs as the fountain head and partakes of sovereignty and is the power which creates the organ and distributes the powers. therefore, in a sense the constituent power is all embracing and is at once judicial, executive and legislative, or in a sense super power. The constituent power can also change the system of checks and balances upon which the separation of powers is based.” (paragraph 521)

Ray C.J. agreed with this contention, holding that “the constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign” (paragraph 48). However, Ray C.J. was in the minority on this specific point, and his reasoning has never been followed. In that same case, Justice Khanna observed:

     “A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding.” (paragraph 190)

In addition to Justice Khanna, Justice Beg also held the 39th Amendment to be void for violating the basic feature of the separation of powers, since it sought to concentrate judicial power in the hands of the Parliament (paragraph 690). Two judges out of five, therefore, specifically invalidated a constitutional amendment because it sought to change the separation of powers scheme that flowed from the Constitution.

More recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.” (paragraph 22)

It is submitted that the logic of Hinds vs The Queen and Madras Bar Association vs Union of India – namely, that converting judicial power to executive power upsets the separation of powers that flows from the Constitution – applies with equal force to parliament converting constituent power to legislative power. By doing this, Parliament grants to itself (functioning as a legislature) the power to change through ordinary law-making what earlier could be changed only through constituent lawmaking. This, naturally, aggrandises the power of the Parliament at the expense of the other branches. The only difference with the more familiar cases in Hinds and Madras Bar Association is that instead of taking power from one of the other co-ordinate branches, the Parliament is taking it away directly from the Constitution. The violation of the basic structure is therefore clear.

In sum: A matter that was regulated by the Constitution (appointment of judges) under the unamended Article 124 cannot, via amendment, be delegated to merely legislative control, as this violates the principle of separation of powers.

     Judicial Independence

Article 124C is not only destructive of the separation of powers more generally, but is also specifically destructive of judicial independence, which has been held to be part of the basic structure (Second Judges Case), and has been admitted to be so by the Respondents in this case. Judicial appointments have also been held to be an essential aspect of judicial independence (Sub-Committee on Judicial Accountability vs Union of India, (1991) 4 SCC 699; Union of India vs Pratibha Bonnerjea, (1995) 6 SCC 765). It is for this reason that the erstwhile Article 124 regulated the system of judicial appointments as part of the constitutional scheme.

However, under the new Articles 124A-B-C regime, the only aspect that is part of the Constitutional scheme is the make-up of the NJAC, in Article 124A. As is evident from the NJAC Act, Article 124C allows the Parliament to make rules with respect to critical issues such as quorum, vote weightage, veto powers, tie-breaks, and even selection criteria for the “two eminent persons”, who constitute one-third of the strength of the NJAC. It is obvious that each of these issues can have a significant impact upon the outcome of the selections process, and taken together, they can change its entire character. For the reasons adduced above, this amounts to a significant delegation of constituent power, and is therefore impermissible.

Article 124C and Excessive Delegation

It might be argued that the delegation in this case is within permissible parametres. Reliance might be placed upon the cases cited above to argue that the policy has been laid out in Article 124A and B, and the goal of C is to simply provide for day-to-day implementation. A quick glance at 124A, B and C reveals, however, that both the functionality test, and the control test, have been violated.

Control

As discussed above, the nub of the control test is there should be ongoing supervision, a “living continuity” of control. This is impossible under the 124A-B-C regime, because the Parliament only acts in its constituent capacity when it is amending the Constitution. The difficulties of putting together super-majorities to amend the Constitution means that this is an infrequent occurrence. Consequently, once 124C has delegated the major questions of appointment to legislative control, without any guidance under 124A or B, it is obvious that supervisory control is impossible.

This position is exacerbated by the fact that after I.R. Coelho vs Union of India ((2007) 2 SCC 1), it is arguable that ordinary legislation is not subject to the basic structure. This leads to a perverse situation, where the only possible form of control – that of approaching the Courts – will be unavailable if Parliament, in pursuance of its authority under Article 124C, frames perverse rules or regulations dealing with the constitution and procedures of the NJAC, which completely undermine the independence of the judiciary, but which Parliament is not barred from doing under 124A-B-C as they stand.

Functionality

As pointed out above, the 124A-B-C scheme, as it stands, leaves huge swathes of discretion, in critical areas, to the Parliament (which, in turn, is further allowed to leave them to the Commission itself). With respect to the workings of the NJAC, these include issues of quorum, voting weightage, tie-breakers, and selection criteria, to name just four. There is no “guidance” provided by the wording of Article 124A, which solely deals with the composition of the NJAC, or 124B, which solely deals with appointment of judges on the basis of ability and integrity. This, therefore, amounts to an impermissibly excessive delegation of an essential constitutional function to the legislature (arguing merely legislative power).

A comparison with the 122nd Amendment Bill to the Constitution, which establishes the GST regime, will make the contrast stark. Section 12 of the Amendment Act establishes the Goods and Services Tax Council, and provides the following details:

  1. every member
  2. the overall value that the Council must act in accordance with: “the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.”
  3. the quorum (half)
  4. the decision process (in a meeting)
  5. the modalities of decision-making (majority of not less than three-fourths of the weighted votes)
  6. the principles on which to weigh votes

It is evidence that none of these six crucial issues are present in the 99th Amendment. In fact, as the NJAC Act shows, all these have been left to the Parliament, through the process of ordinary law-making. This, therefore, is not a case of the parent law laying out the vision and encoding it as a legal rule, with only the “gaps” needing to be filled in by the delegate. On the other hand, this is an impermissible substitution of power – from the Constitution (via constituent law-making) to the Parliament (through legislative power).

Conclusion

Article 124C violates the basic structure of the Constitution, and ought to be struck down. By using its constituent power of amendment to draft a provision that delegates what was earlier part of the constitutional scheme to the ordinary legislature, Parliament, in framing Article 124C, has violated the basic feature of the separation of powers. Specifically, it has also violated judicial independence by placing far-reaching powers with regard to the manner and functioning of the NJAC in the hands of the legislature. Drawing an analogy with the rule against non-delegation of essential legislative functions, it can be seen that 124C does not have the safeguard of continuing supervision of the legislature. Furthermore, since Article 124A only provides for the make-up of the NJAC, the Article 124C’s delegation is not merely allowing the legislature to fill in gaps in order to give effect to the constitutional scheme, but effectively amounts to a substitution of constituent power. For all the reasons adduced above, this violates the basic structure.

It is also clear that if Article 124C is struck down, then nothing remains of the 99th Amendment, and the rest of it must go as well. Without Article 124C, all that remains is the Judicial Appointments Commission, without any further details about its functioning. Consequently, Article 124C is not severable from the rest of the 99th Amendment – if the Court decides to invalidate it, it must also strike down the entire Amendment, including Article 124A.

Debating the NJAC: Who are the Eminent Persons? (Guest Post)

(In this guest post, Ritwika Sharma examines one of the more contentious issues of the NJAC challenge – the “eminent persons” who will form part of the proposed judicial appointments commission)

As part of the new Article 124A, which details the composition of the National Judicial Appointments Commission, Article 124A(1)(d) envisages the presence of two eminent persons on the NJAC, who are to be nominated by the committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha (or the Leader of the single largest party Opposition Party, as the case may be). The proviso to this clause mandates that one of the eminent persons shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.

Article 124A, insofar as it envisages the inclusion of two eminent persons in the NJAC, was repeatedly attacked for being vague and for the lack of any guidance regarding their selection. Further, the petitioners contended that the presence of the eminent persons on the NJAC would be violative of the independence of the judiciary insofar as the executive, with the support of the eminent persons might act as a structured bloc to block an appointment.

As a response to the petitioners’ contentions, a three-pronged argument is being adopted to defend the presence of eminent persons on the NJAC:

First, the presence of eminent persons on the NJAC is intended to perform a specific objective. The argument that eminent persons would collude with the Law Minister is based on the supposition that the NJAC would function as an aggregation of three distinct blocs. Rather, the NJAC would function as a collective wherein a specific function is envisaged for each of its members. While the judiciary would be expected to assess legal acumen, the Law Minister would be best equipped to assess the character, conduct and antecedents of a candidate. Eminent persons would make significant contributions in the following manner in assessing the suitability of candidates:

1. The presence of eminent persons would bolster public confidence in the judiciary. They would ensure that perspectives of the citizenry, who are the ultimate consumers of justice, are also taken into due consideration, and that there is higher sensitivity to the issues of the public. That was the intended purpose for their inclusion in the NJAC, succinctly summed up in Mr. Parasaran’s observation in the Rajya Sabha Debate on the Constitution (121st Amendment) Bill, 2014 (which was ultimately passed as the 99th Amendment):

People, who are litigants before the court, are represented by two eminent persons.”

A similar view was voiced in regard to the presence of “lay persons” on the various consumer fora under the Consumer Protection Act, 1986. The Supreme Court, in Indian Medical Association v. VP Shantha, (1995) 6 SCC 651 placed reliance on a study by Prof. Robin CA White, In the Administration of Justice (2nd Edn.) where he observed that “apart from their breadth of experience, the key role of lay members would be in ensuring that procedures do not become too full of mystery and ensure that litigants before them are not reduced to passive spectators in a process designed to resolve their disputes.” [as quoted in VP Shantha at para 34]

The Court further held in VP Shantha –

In the matter of constitution of the District Forum, the State Commission and the National Commission, the Act combines with legal competence the merits of lay decision-making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers.” [para 34]

Public confidence is imperative for our judiciary, particularly in light of its powers of judicial review which are largely unparalleled in the world. Eminent persons are intended to be members of the public, presumably detached from the rigours of the legal profession. Their presence on the NJAC creates a direct stake for the public in the appointment process and ensures to them that the judges so selected would be sensitive to their interests.

2. Eminent persons add relevant inputs to the NJAC which would be essential to assess various qualities expected in a judge. The qualities required of a judge are wide-ranging, not all of them bearing an impact on his role as an adjudicator of disputes. Judges are expected to have certain qualities with regard to their conduct in the public sphere as well, whereby they should be compassionate, conscientious and insulated from all kinds of class biases. It can be nobody’s case that only judges are competent to asses such qualities in prospective candidates. Eminent persons can bring in necessary fresh perspectives in this regard. Additionally, the presence of eminent persons breeds diversity in the NJAC and by necessary implication, in the appointments made. Eminent persons facilitate a participatory appointments process and bring in plurality of viewpoints. The United Kingdom (UK) leads by example in this regard where the Supreme Court selection commissions are to consist of at least one non-legally qualified member, while the Judicial Appointment Commission (JAC) comprises 5 lay members. The presence of lay persons on selection panels finds justification in a report on Judicial Appointments, prepared by the House of Lords Selection Committee on the Constitution (2012):

For the judiciary to be solely responsible for the appointments process would risk undermining the promotion of diversity and ultimately, public confidence in the judiciary. Furthermore, the appointments process is enhanced by the involvement of lay persons who can bring a different perspective to the assessment of candidates’ abilities. It is therefore important that selection panels include a mixture of judicial and lay representation.” [para 67]

Thus, diversity in a selection/appointment commission is expected to percolate into the appointments eventually made by such body. The importance of diversity has also found enunciation in Registrar General, High Court of Madras v. R. Gandhi and Ors. (2014) 11 SCC 547:

 

Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness.” [para 16]

 

It is also indecorous to say that eminent persons being non-judicially or non-legally trained would be unable to assess candidates on the qualities requisite of a judge. It is reasonable to assume that these eminent persons would be ably guided by the Chief Justice and other judges on the NJAC in his functions. Yet again, the NJAC is to be viewed as a collective where each member would facilitate the other in assessing relevant qualities of the candidates placed before it.

3. Eminent persons will act as a check against arbitrary exercise of power by any of the other members on the NJAC. They would be truly independent individuals who approach the appointments process from a detached standpoint. It was repeatedly argued by the petitioners that the Law Minister with the support of any one of the two eminent persons can potentially block any appointment. On the contrary, their non-alignment with any of the other members on the NJAC would make them vigilant against any purported collusion to steer or block an appointment, acting as a much-needed check and balance.

Evidently, eminent persons would serve an important purpose on the NJAC, eventually bettering the quality of judges who would be appointed.

Secondly, the process for nomination of eminent persons comes with in-built safeguards and abundant guidance. Their appointment is to be made by a committee comprising high constitutional functionaries. In the Lok Sabha Debate on the Constitution (121st Amendment) Bill, 2014, Minister for Law and Justice, Mr. Ravi Shankar Prasad noted on the role of this selection committee:

The Prime Minister of India, the Chief Justice of India and the Leader of the largest Opposition party cannot select the two best eminent persons! Trust their wisdom. Regulations are there, but trust their wisdom. I am sure, if a person is the Prime Minister of India, if a person is the Chief Justice of India, if the third person, the Leader of the Opposition – who knows it may be you as well on behalf of your party – ultimately decides to sit and exchange note, then let us trust their collective wisdom. This collective wisdom would reflect upon the quality of appointment being made….

A constitutional trust attaches to the position of these functionaries and a presumption exists that they will come together to appoint persons of independence, integrity and competence. The principle of constitutional trust was applied in the context of appointments by the collegium in Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273 in the following words, and the same should apply to appointments by the NJAC as well:

….At the end of the day “trust” in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process….” [at para 83]

Additionally, the presence of the Chief Justice of India is a sufficient safeguard to ensure that persons who will add value to the process of selecting the most appropriate candidates for judicial office would be selected as “eminent persons” on the NJAC. In fact, the argument that one of (or both) the eminent persons would collude with the Law Minister is in utter disregard of the constitutional trust attaching with the offices of these high constitutional functionaries. It proceeds on the assumption that a committee which also consists of the Chief Justice would choose a political appointee who is vulnerable to the influence of the Law Minister, thereby simultaneously casting aspersions on various branches of the government!

Lastly, and on a purely factual basis, it is argued that even previous reform proposals which have recommended a judicial appointments commission for India comprising “eminent persons” have done so without laying down any stated criteria for their selection. This is in response to the petitioners’ contention that the 99th Amendment does not lay down any guidelines/criteria for nominating eminent persons. The National Commission to Review the Working of the Constitution (Venkatachaliah Commission) proposed an appointments commission comprising the Chief Justice of India, 2 senior-most judges, the Law Minister and 1 eminent person, a model which was advocated by the petitioners themselves on several occasions. The eminent person on this commission was to be appointed by the President in consultation with the Chief Justice of India. Notably, no criteria had been prescribed for the selection of such eminent person in this model, which was modified and adopted as the Constitution (98th Amendment) Bill, 2003. The same holds true for the Judicial Appointments Commission Bill, 2013 which envisaged a commission with two eminent persons who were to be nominated by the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha. These two reform proposals, along with others, were taken into due consideration by the Parliament while passing of the 99th Amendment. None of these prescribed any criteria for the selection of eminent persons on the appointments commission.

The 99th Amendment has clearly not devised a legislative innovation insofar it speaks about the presence of eminent persons on the NJAC. In any event, the 99th Amendment and the NJAC Act provide a skeletal structure for the establishment and constitution of the NJAC. Specific details with regard to the nomination, qualification, removal, et al of the eminent persons can be gradually formulated. A challenge to the 99th Amendment on the grounds invoked by the petitioners seems misplaced. In light of the above, it is argued that the presence of two eminent persons on the NJAC is not per se violative of the independence of the judiciary.

 

Debating the NJAC: Why Judicial Primacy in Appointments is Not Part of the Basic Structure (Guest Post)

(Continuing our discussion about the constitutionality of the 99th Amendment and the National Judicial Appointments Commission, Suhrith Parthasarathy argues that a close reading of the Second Judges Case leads to the conclusion that judicial primacy in appointments is not part of the basic structure)

In his twopart essay, Gautam Bhatia has persuasively argued that the 99th Amendment to India’s Constitution, insofar as it introduces a new Article 124-A, infringes the Constitution’s basic structure, and is therefore liable to be declared as null and void. Gautam’s contentions are based broadly on the judgment of a nine-judge bench of the Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India [“The Second Judges Case”], which, he argues, effectively holds that granting primacy to the judiciary’s opinion in the process of appointment of judges to the Supreme Court is integral to the guarantee of the independence of the judiciary. Since several other cases have recognised the principle of judicial independence as comprising a part of the Constitution’s basic structure, to strip Article 124 of the primacy that it grants to the judiciary, he submits, would tantamount to making an unconstitutional amendment. Unfortunately, I’m unable to agree with this view. In arguing in favour of Article 124-A, I won’t rely on too many fresh authorities. Instead, my endeavour would be to merely refute Gautam’s argument that the 99th amendment is unconstitutional in light of the ratio in the Second Judges Case.

At the outset, I must say that regardless of what the findings in the Second Judges Case were, the present challenges to the 99th Constitutional Amendment ought to have been referred to a bench of 11 judges. This is, after all, the first time that the Constitution has been amended to alter the process of making appointments to the higher judiciary. And given the extent of controversy over the questions raised, and given the well-documented lack of confidence in the present system, carved as it was through judicial intervention, the least that the present challenges deserve is a hearing untroubled by the burden of having to uphold the ratio in the Second Judges Case. The judges of an 11-judge bench, so constituted, would have, in any event, been free to strike down Article 124-A on the ground that its contents impinge judicial independence. But at least the bench would have had to provide solid reasons, transcending those contained in the Second Judges Case, on why the removal of primacy granted to a select band of senior judges of the Supreme Court in matters of making appointments to the court impairs the Constitution’s basic structure.

When we consider the ratio, as is generally ascertainable from the majority’s judgment in the Second Judges Case, it becomes immediately apparent that the court’s reasoning has no basis in either the plain text of the Constitution or in the discussions held in the Constituent Assembly during the process of drafting Article 124. Article 124, as it originally stood, provides that the President shall appoint judges to the Supreme Court after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose. And, where the appointment is of a judge other than the Chief Justice of India, the President is mandatorily required to consult the Chief Justice. Now, the Supreme Court, in the Second Judges Case, says that the word consultation in Article 124 ought to be read to mean concurrence. If you performed this substitution literally, Article 124 would effectively demand concurrence not only with the Chief Justice of India but also with “such of the judges of the Supreme Court” that the President may deem necessary for that purpose. This would have meant rather bizarrely that the president could consult whichever judges he feels need to be consulted, but once he consults those judges, their concurrence must be obtained. It was to solve this confusion wrought by its own faulty interpretation that the Supreme Court chose to introduce a system of a collegium of judges, who would be granted the final say in matters of appointments. Whichever way one wants to look at the decision, even if we were to consider the interpretation as one that seeks to maintain a fidelity to larger principles of judicial independence, the construal of “consultation,” to mean “concurrence,” is nothing but a re-writing of the Constitution’s text. In fact, when a member of the Constituent Assembly, M. Pocker Sahib, made a move to make the concurrence of the Chief Justice of India compulsory in matters of appointments, the proposed amendment was rejected outright. The chairperson, Dr. B.R. Ambedkar suggested that what was intended was a “middle course.” Therefore, the understanding of Article 124 in a manner that involves reading consultation to mean concurrence cannot be considered as a simple case of construing a text through commonly accepted rules of interpretation.

Now, the bench hearing the present challenge to the 99th constitutional amendment might still refer the cases to an 11-judge bench. This would, in my opinion, be the appropriate procedure to follow, even if belatedly arrived at. For, if the Supreme Court were to declare Article 124-A, as introduced by the 99th amendment, as unconstitutional, based solely on the ratio in the Second Judges case, without a reference to an 11-judge bench, the decision would be deeply damaging for the court’s integrity. Assuming that no such reference is made, and that the present petitions are decided fully on their merits, I would still argue that Article 124-A requires to be upheld for the following reasons.

1. There is no explicit finding in the Second Judges case that primacy of judicial opinion in making appointments to the Supreme Court is a part of the basic structure of the Constitution. The court may well have felt, in its opinion, that according primacy to a collegium of judges would serve judicial independence well. But would that then mean that removing the grant of primacy (even assuming such primacy was implicit at the very inception of the Constitution in Article 124) violates the basic structure? In this context, Paragraph 72 of the judgment in the Second Judges Case, which has been relied on to argue against the validity of Article 124A is relevant. It says:

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

There are, I would submit, very many different ways of ensuring judicial independence, and while primacy might be intended in some cases to serve in securing an independent judiciary, there is nothing in Paragraph 72 of the judgment in the Second Judges Case to suggest that granting primacy to the judiciary is the only means of securing an independent judiciary. In my belief, it would have to be separately argued that the absence of primacy in matters of judicial appointments, read in conjunction with the other safeguards that might be in place (such as the securing of tenure, pensions, etc.) is destructive to judicial independence. Here, it’s important to bear in mind that the discussions in the Constituent Assembly on an independent judiciary were almost dismissive of the idea of granting primacy to the judiciary in matters of its own appointment. In fact, in according the executive the express power to make the appointments, the Constituent Assembly, if anything, was recognising the precise converse of what came to represent the ratio in the Second Judges Case. The Constituent Assembly was always conscious of ensuring the independence of the judiciary, but it certainly didn’t see granting primacy to the judges in appointing their own brethren as a condition necessary for securing such autonomy. If anything the creation of the collegium, and the grant of primacy thereto, appears to infract the guarantee of separation of powers, universally regarded as being part of the Constitution’s basic structure. In any event, the Supreme Court, in the Second Judges Case, did come to believe that a requirement for primacy to judicial views was somehow inherent in the text of Article 124. But that can hardly constitute good enough reason for stopping Parliament from today removing the grant of such primacy.

2. Even assuming that the Second Judges Case did hold the primacy granted to the collegium to be a necessary condition for ensuring the independence of the judiciary, there remains the question of whether this finding constituted a part of the ratio decidendi of the judgment. The bench in the Second Judges Case could quite easily have found that the word “consultation” as used in Article 124 meant “concurrence,” without going into an analysis of whether the primacy granted was essential for securing judicial independence. In fact, the bench attributes the use of the word “consultation” as opposed to “concurrence” in Article 124 to the Constituent Assembly’s supposed motive of reducing executive involvement in the process of appointing judges. Here, I would defer further to Vishwajith Sadananda’s arguments, which go to show more conclusively that the Second Judges Case did not, as part of its ratio, hold primacy of the judiciary to be an essential component of securing the independence of the judiciary.

3. Paragraph 36 of the judgment in the Second Judges Case has been used as authority to conclude that the primacy granted to the judiciary is inextricably linked to the securing of judicial independence, which is a basic feature of the Constitution. Paragraph 36 states, “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act.”

It is trite to argue that the element of providing a compulsory consultation with the Chief Justice of India and other judges that the President may deem necessary for the purpose of appointing judges was introduced to serve as a check on complete executive power. But if this were to equate to granting primacy to the judiciary, and if we were to see that grant of primacy as somehow integral to judicial independence, it is impossible to conceive why the Constituent Assembly would vest the ultimate power of appointment with the Executive.

4. Reliance has been placed on the decision of the Supreme Court in Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, a judgment, which came out two years before the Second Judges Case. Now, it’s clear from the paragraph extracted from this judgment that the case considers the process of consultation contained in Article 124 to represent a feature essential to securing judicial independence, and therefore a part of the basic structure of the Constitution. But, it’s important to bear in mind that at the time when the Sub-Committee on Judicial Accountability case was decided, the law of the land, as laid down by the Supreme Court in S.P. Gupta v. Union of India [The First Judges Case] was that the judiciary did not enjoy primacy in matters of appointments. On the contrary, the law was quite precise in recognizing the primacy of the executive’s view in the process of making appointments to the higher judiciary. So if we were to hold that the Sub-Committee case helps establish the position that Article 124, in, and by, itself, is a part of the Constitution’s basic structure, then it can equally be argued that the case only held that Article 124, as interpreted in a manner, which did not give primacy to the judiciary, was a part of the Constitution’s basic structure. This is so because at the time when the Sub-Committee case was decided, Article 124 was construed in a manner that did not give the judiciary primacy.

5. The 99th Constitutional Amendment, in introducing Article 124-A, does not impinge the holding in the Sub-Committee case, which merely held that consultation with the Chief Justice of India was an essential part of securing the independence of judiciary, and therefore a part of the basic structure of the Constitution. This consultation remains a part of the Constitution, through the operation of the National Judicial Appointments Commission. The only real consequence of the amendment is the removal of the collegium, which is nothing but an extra-constitutional creation by the Supreme Court, in the Second Judges Case.

6. Finally, a five-judge bench in Union of India v. Sankalchand Sheth, AIR 1977 SC 2328, has held, through Justice VR Krishna Iyer’s majority opinion, in the context of transfers of high court judges under Article 222 that the word “consultation” used therein does not mean “concurrence.” Here too, the bench was conscious of the fact that a wrongful interpretation of the provision could potentially affect the independence of the judiciary. In Paragraph 88, Justice Iyer wrote: “Our basic task now is simplified because the issues and themes that have fallen for discussion demand an application to the concrete situation of the general principles bearing on statutory construction we have put down in variegated colours. But, before that, in the spirit of what we have said, we may refer to a fundamental consideration which must be regarded almost as inspirational in the art of interpretation of a Constitution when the clauses to be construed are so cardinal as to affect the basic structure of the national charter, viz., the independence of the judiciary. To dissect a constitutional provision meticulously as if it were a cadaver is to miss the life of the charter we are expounding. To change the metaphor, then the arrow hits a mark ‘the archer never meant’.”

The fear that the executive might use the authority vested on it to appoint pliant judges favourable to its government’s outlook is well founded. But, the National Judicial Appointments Commission, established through the 99th Constitutional Amendment, does not permit such excessive authority. It’s a six-member commission heavily tilted in favour of according the judiciary a significant say in matters of appointment. It not only comprises the three most senior judges of the Supreme Court, but it also accords the Chief Justice of India a vote in determining the two eminent persons to be nominated on the commission. If Parliament were by law to modify the mode of the Commission’s workings (through an exercise of its powers under the newly introduced Article 124-C) in a manner contrary to the Constitution’s express provisions or in a manner that impinges the independence of the judiciary, the Supreme Court will always be free to declare such legislation void.

The present challenges before the Supreme Court must no doubt be viewed with a touch of pragmatism, regarding the general proclivities of Indian governments. But, nonetheless as a matter of pure constitutional analysis, it is difficult to argue that the 99th constitutional amendment infracts the basic structure of the Constitution. If anything, the amendment comprehensively upholds the basic structure by recognising not only the importance of guaranteeing an independent judiciary, but also the importance of ensuring a strict separation of powers.