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 two–part essay, Gautam Bhatia has persuasively argued that the 99^th 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 99^th 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 99^th 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 99^th 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 99^th 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.

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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.

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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.

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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.

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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.

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5. The 99^th 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.

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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 99^th 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 99^th 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.

 

Debating the NJAC: The Second Judges Case, Judicial Appointments, and the Basic Structure: A Response – II (Guest Post)

(In his last essay, Vishwajith Sadananda argued that The Second Judges case did not hold judicial primacy in appointments to be part of the basic structure; and even if it did, following Nagaraj’s Case, a constitutional amendment can be struck down for violating the basic structure only if, in some way, it damages the very identity of the Constitution. This essay continues the argument.)

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Judicial predominance in appointments to the judiciary was never part of India’s constitutional identity. The process was always meant to be participatory and consultative without any predominance of the judiciary. At the time of the drafting of the original Article 124, Dr. B.R. Ambedkar observed [Constituent Assembly Debates, Tuesday, the 24th May, 1949]-

“…The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto in the President or the Government of the day. I therefore, think that is also a dangerous proposition.”

As seen from the aforementioned paragraphs, merely because a system requiring “primacy” was introduced in 1993 by a judgment of the Court, it cannot be said that it has become a part of the constitutional identity thereby elevating the same to be part of the basic structure.

However, assuming, but not conceding, that the decision in the 2^nd Judges case held that primacy is part of the basic structure, applying the “identity” and “width” test [See M. Nagaraj at para 102], it cannot be said that Article 124A violates the basic structure.

Article 124A will have to be tested on the basis of how wide the power conferred by the Amendment is and whether the identity of the essential feature is destroyed. In other words, if the power provided for by the amendment is so wide that it destroys the identity of the overarching principle, the amendment is liable to be struck down. [See Pramati Educational and Cultural Trust (Registered) and Ors v. Union of India (2014) 8 SCC 1 at para 29]

Article 124A provides for the setting up of the NJAC comprising of 3 judges of the Supreme Court [the CJI, J1 and J2], 1 member of the executive [the law minister] and 2 eminent persons to be picked by a collegium comprising of the CJI, Prime Minister and Leader of Opposition (or the leader of the largest opposition party, as the case may be).

Without going into the NJAC Act, it can be seen that by mandating that 3 out of 6 members of the NJAC should be judges of the Supreme Court, predominance is still given to the voice of the judiciary in the matter of appointments.

Hence, as the principle of predominance or primacy of the voice of the judiciary is still maintained even after the Amendment, it cannot be said that the width of the power conferred by Article 124A destroys the identity of the overarching principle laid down in the 2^nd Judges case.

Lastly, it has been argued by the Petitioners that the presence of the law minister on the NJAC damages the independence of the judiciary.

While it is a sound argument to make that the executive should not have complete control over the appointments process, an argument that canvasses the complete exclusion of the executive cannot be countenanced. It was always the intention of the framers of the Constitution to have a more participatory appointments process by involving the executive in the appointment of judges. T. T. Krishnamachari, a member Constituent Assembly, highlighted the importance of the executive in the appointments process by stating:

“…At the same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to create specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic”.

[Constituent Assembly Debates, Vol. VIII (27 May 1949) 389].

Dr. B.R. Ambedkar also echoed the same view during Constituent Assembly Debates, Tuesday on 24th May, 1949.

The aforesaid view of the Constituent Assembly eventually found its place in the Constitution in the form of Art. 124 which also explicitly recognized the participation of the executive in the appointment of judges within the constitutional framework.

It is also pertinent to note that the Court has also recognized the importance of the executive in the process of appointment of judges. The majority opinion of the Court 2^nd Judges case held [Page 688 para 439]:

“This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance and these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector.”

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“There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultee, before the appointment is made.” [para 462]

Furthermore, Ahmadi J., in his dissenting opinion, also recognized the role of the executive in appointing judges. He observed:

“It must be remembered that in the process of selection of candidates for appointment to the superior judiciary of the country every effort must be made both by the executive wing as well as the judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases there is no reason why it should not be possible. The executive and the judiciary do not work at cross purposes, in fact their objective is common and, therefore, it would really be surprising if there is lack of understanding in a wide range of cases between them.” [para 292]

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“But a distinction exists between the legal acumen of a lawyer and qualities which go to make a good judge. In relation to the first the Chief Justice of the State would be better suited to opine but in relation to the second the executive will certainly have a role to play. It is the blending of these two roles which brings out the full personality of the candidate” [para 303]

Punchi J., in his dissenting judgment also held:

“The two high effectual constitutional dignitaries, such as the Prime Minister of India aided by the Law Minister, if any, and the Chief Justice of India are expected to interact in a spirit of mutuality and accommodation, and not act at cross purposes.” [para 498]

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“Thus on the question of primacy I conclude to say that the role of the Chief Justice of India in the matter of appointments to the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the wishes of the other.” [para 509]

It has to be borne in mind that Constitutional Courts, with powers of judicial review, are mainly counter majoritarian institutions and are often required to pass judgments that fail to conform to the popular will of the people. In India, the power of the Constitutional Courts has greatly increased with the rise of public interest litigations. These Courts have become powerful decision makers which affect the lives of many citizens. Therefore, it is in this additional backdrop that judicial appointments must be analyzed.

 Judicial appointments need to be examined through the prism of a democratic polity. A democratic system necessarily requires that institutions derive their legitimacy through the will of the people. Legitimacy, as a principle, is determined by how well an institution fits within the concept of a democratic society. In other words, institutions can be said to be legitimate only if they are accountable to the people they intend to govern.

 In this regard, it is not only actual legitimacy of the judiciary, but also perceived legitimacy that needs to be protected and advanced. In other words, in a democracy, adjudicatory institutions should also seem to be legitimate. As a consequence, the appointments process should also be legitimate and be, to some extent, accountable to the will of the people.

The law minister is appointed through a process that accounts for the will of the people and is subjected to periodic expression of that will through elections. Hence, the presence of the law minister in the NJAC provides a link to a democratic process and enables public engagement in the process of appointment of judges by allowing the scrutiny of a candidate by a democratically elected individual.

Furthermore, the presence of the law minister is in furtherance of the doctrine of separation of powers. The Court has repeatedly held that separation of powers is part of the basic structure of the Constitution. However, under our Constitution, the doctrine of separation of powers is understood in the context of providing checks and balances between the various organs of the State. The presence of the law minister on the NJAC, therefore, provides a check against the concentration of powers in relation to appointment of judges in the hands of only one wing of the State while at the same time not diluting the voice of the judiciary in the matter of appointments. This ensures a more holistic, participatory and democratic approach to judicial appointments.

Therefore, Article 124A is not liable to be struck down.

Debating the NJAC – The Second Judges Case, Judicial Appointments, and the Basic Structure: A Response -I (Guest Post)

(In a two-part essay, Vishwajith Sadananda responds to the previous essay on this blog, arguing that Article 124A and the National Judicial Appointments Commission are constitutional, and should be upheld.)

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There is no doubt that the independence of the judiciary and appointment of judges is very closely related. But, at the outset, it is important to note that the independence of the judiciary cannot be looked at as an absolute principle. While some aspects affecting judicial independence can be corrected by institutional changes, other aspects simply cannot be subject to institutional corrections. For example, the judiciary may be completely free from the executive, but an individual judge may have certain political ideologies that may colour his judgment thereby preventing the adjudicatory process, to some extent, from being truly independent and impartial. Therefore, any enquiry into whether an institutional mechanism provides for judicial independence should necessarily explore the degree of judicial independence as opposed to engage with the question of how absolute the independence is. It is in this backdrop that the 99^th Amendment must be examined.

The contention of the Petitioners, in the present matter (4^th Judges case), was that Article 124A violates the basic structure of the Indian constitution. The contention, as already argued on this blog before, is founded on the premise that the Court’s decision in Supreme Court Advocates On Record Association v. Union of India (1993) 4 SCC 441 [hereinafter referred to as “the 2^nd Judges Case”] held that primacy of the judiciary in the realm of appointments forms part of the basic structure.

However, determining the ratio of the 2^nd Judges case requires a contextual understanding of the case.

The Court in the 2^nd Judges Case was primarily concerned with reconsidering its decision in the S.P. Gupta v. Union of India [“1^st Judges Case”]. In the 1^st Judges Case, a 7 judge bench held that the executive had absolute control over judicial appointments and that the judiciary was merely to be consulted in matters relating to appointments. It is in this context i.e., the backdrop of the 1^st Judges Case dictum that the judgment of the Court in the 2^nd Judges Case has to be read.

A two step approach was used by the Court in the 2^nd Judges case. Step 1: Divesting the executive of the absolute discretion enjoyed by it and; Step 2: Resolving the issue of conflict between the constitutional functionaries.

It is in Step 1 that the discussion on independence of the judiciary finds more relevance. The Court relied on the principle of judicial independence in order to completely divest the absolute control of the executive in the matter of appointments thereby negating the effect of 1^st Judges Case. This can be observed from the following passage of the majority [para 447]-

“When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. 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.”

After divesting the power of the executive from making appointments to the superior judiciary, the Court was faced with the task of determining whose opinion would have more weight in the event there was a deadlock between the executive and judiciary. This was Step 2. The majority view of Verma, J. observed [para 451]-

“The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises.”

It is in this context that the Court discussed the principle of primacy. Therefore, the idea of “primacy of the judiciary” was confined only to the issue of deadlock between the consititional functionaries and not judicial independence per se, and to fulfill the “constitutional purpose” of picking the most suitable judges for the superior judiciary. It was observed [para 462]-

“The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge… the initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the courts, it is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court… the object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultee, before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best subserves this constitutional purpose would be the correct answer.”

Hence, it is evident from the aforementioned paragraph that the principle of primacy of the judiciary was discussed for the limited purpose of given weight to the opinion of the judiciary, as an expert body, in the event of a deadlock between the executive and the judiciary. In other words, while judicial independence was used as a principle to divest the power of the executive, the principle of primacy was used to give more weight to the judiciary in the event of a stalemate between the constitutional functionaries to fulfill a constitutional purpose.

In fact, the Court held that achieving the constitutional purpose of selecting the best judges would strengthen judicial independence. Therefore, while primacy of the CJI may be one way of achieving this constitutional purpose, it cannot be said, and indeed the Court did not hold, that it is the only way.

Consequently, on a contextual reading, it becomes clear that, in the 2^nd Judges Case, the concept of primacy has no direct nexus with the principle of independence of the judiciary.

Be that as it may, it is important to now test whether, after the 2^nd Judges cases, primacy has become part of the basic structure.

In M. Nagaraj v. Union of India (2006) 8 SCC 212, the Court held that only those overarching principles that have become part of the constitutional identity, and are so fundamental to the constitution, can be considered to be part of the basic structure. The Court held [para 25 and 28] –

“In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.”

To conclude, the theory of basic structure is based on the concept of constitutional identity… The word ‘amendment’ postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty…. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.”

While determining whether an overarching principle has become part of the constitutional identity, it is necessary that the principle should be linked to the provisions of Constitution. This is in tune with the Court’s dictum in Indira Gandhi v. Raj Narain (1975) Supp SCC 1 [para 663]- [“one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.”]

Further, while noting that a basic feature has to be determined on the basis of the placement and the structure of an article in the Constitution, this Court in M. Nagaraj [paras 23 and 35] observed-

“23…However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution.”

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“35. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.”

In the next post, it will be demonstrated that the Supreme Court’s interpretation of Article 124 in The Second Judges Case does not meet the Nagaraj test of constitutional identity.

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[Disclosure: The author involved in assisting the Respondent (Union of India) in the present case]

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

In the last essay, I argued that a plain reading of the Second Judges Case makes it clear that the collegium arose not merely out of the textual reading of Article 124 (“consultation” as “concurrence”), but as a necessary guarantor of the basic feature of judicial independence, via the requirement of judicial primacy in appointments in order to break deadlocks. Consequently, the Union cannot argue that by substituting Article 124 with 124A – and “consultation” with the NJAC, it has legitimately removed the basis of the collegium.

It might be argued, however, that the paragraphs excerpted from the Second Judges Case are merely incidental observations, which are not meant to bind future Courts. Any ambiguity, it might further be contended, should be resolved against the collegium, given the clear wording of Article 124, and the role that it envisaged for the Executive. In fact, the Union has gone one further, and argued that judicial appointments are no part of judicial independence – the latter is guaranteed by conditions such as security of tenure, fixed salaries, and other institutional methods of insulating judges from the influence of the Executive.

In what follows, I will try to show that even if the Second Judges Case is ambiguous, the ambiguity should be resolved in favour of the proposition that judicial primacy in appointments is a necessary feature of judicial independence, and therefore part of the basic structure. I will do so by pointing to cases decided before and after the Second Judges Case, which will therefore help us place that judgment in its jurisprudential context, both past and future.

In a number of cases, the Supreme Court has held that the independence of the judiciary includes independence at the stage of appointments. Two years before The Second Judges Case, in Sub-Committee on Judicial Accountability vs Union of India, (1991) 4 SCC 699, a Constitution Bench of the Supreme Court referred to a number of constitutional provisions that safeguarded the independence of the judiciary, including Articles 124(2) and 217(1). The Court stated:

 “It is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence. In interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of Rule of law. Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Justices. These provisions also ensure fixity of tenure of office of the Judge. The Constitution protects the salaries of Judges. Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided. Articles 124(4) and 124(5) afford protection against premature determination of the tenure. Article 124(4) says “a Judge of the Supreme Court shall not be removed from his office except” etc. The grounds for removal are again limited to proved misbehaviour and incapacity. It is upon a purposive and harmonious construction and exposition of these provisions that the issues raised in these petitions are to be resolved.” (paragraph 8)

As Mathew J. pointed out in Indira Nehru Gandhi vs Raj Narain, AIR 1975 SC 2299, the basic structure is not some “brooding omnipresence in the sky apart from specific provisions of the Constitution.” A number of judgments have drawn the basic structure from specific constitutional provisions. Following this method, the above excerpt demonstrates that in the opinion of the Constitution Bench, judicial independence, as an attribute of the basic feature of the rule of law, was drawn from various Constitutional provisions, including the appointment provisions – Articles 124(2) and 217(1). This implies that the appointment procedure (as embodied in the constitutional provisions that were subsequently interpreted in The Second Judges Case) is part of the basic structure.

As a preliminary point, at this stage, it ought to be n0ted that if Article 124 is part of a number of provisions which, taken together, guarantee judicial independence – and is therefore part of the basic structure – then it logically follows that the judicial interpretation of Article 124 – i.e., the meaning of Article 124 as expounded by the institutional interpreter of the Constitution, the Supreme Court – is also part of the basic structure. Therefore, even if we accept the Union’s argument that Collegium’s sole basis is the text of Article 124, the judgment in Sub-Committee on Judicial Accountability suggests that the parliament is still not competent to amend and remove it, since 124 itself is part of the basic structure.

The above position was endorsed in Union of India vs Pratibha Bonnerjea, (1995) 6 SCC 765, a case decided two years after The Second Judges Case, which was about pensions of CAT judicial officers (who were treated, for this purpose, as equivalent to High Court judges). The Court thus had to explicate upon the relationship between the government and judges. It observed:

 “From the scheme of the Constitution to which we have adverted briefly it is obvious that the Constitution-makers were evidently keen to ensure that the judiciary was independent of the executive… Articles 233 to 237 have, therefore, provided a wholly different mode of selection and appointment of Judicial Officers at the grass roots level and upto the District Courts from the one provided for other civil posts. ”

 The Court in this case, therefore, directly linked the issues of independence and the manner of appointment.

The strongest statement of this principle was made by a three-judge bench in All India Judges’ Association vs Union of India, (1993) 4 SCC 288, decided the same year as The Second Judges Case. Holding that in selections for the lower judiciary, the State Public Services Commission must invite a sitting High Court judge, whose opinion would ordinarily be dispositive (unless there were cogent reasons to the contrary), the Supreme Court also noted:

    “… the separation of the judiciary from the executive, as ordained by Article 50 of the Constitution, also requires that even the judicial appointments at the lower rung are made in consultation with the High Court. If the Judicial stream is polluted at its very inception, the independence of judiciary will remain in jeopardy, for ever.” (para 7)

This, in itself, has been a consistent position followed by the Court. As far back as 1979, in In Re the Special Courts Bill, (1979) 1 SCC 380, the Supreme Court held that a provision allowing for the appointment of retired judges to special courts was unconstitutional and subversive of judicial independence. The core of the Court’s reasoning was that retired judges enjoy no security of tenure; what is important to note, however, is that the Court classified it as an infirmity in the procedural part of the Bill, i.e., going to the question of appointment (paragraph 98). This demonstrates that, contra the Union’s submissions, the manner of appointment is not separate or independent from the question of judicial independence.

Furthermore, in Subhash Sharma vs Union of India, 1990 SCR Supl. (2) 433, which was decided between the First Judges Case and the Second Judges Case, and where the Court recommended that the question be decided by a bench of nine judges (and is therefore important for understanding the logic of the Second Judges Case), it was observed:

      “… the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of “consultation” has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed, vital. The constitutional values can not be whittled down by calling the appointments of judges as an executive act… We are of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection. The purpose of the ‘consultation’ is to safeguard the independence of the judiciary and to ensure selection of proper persons… there are preponderant and compelling considerations why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable.”

 This line of reasoning indicates not only that the independence of the judiciary (which is indisputably a part of the basic structure) extends to the question of appointments, but also that the primacy of the Chief Justice is central to maintaining that independence (in order to continue the “assurance of a non-political complexion”). In the judicial reasoning leading up to the Second Judges Case, therefore, it is clear that the primacy of the CJI was considered by the Court to be part of the principle of judicial independence, and not – as the Union of India contends – a temporary measure designed to deal with an extraordinary situation. So, in K. Veeraswami vs Union of India, 1991 (3) SCC 655, the Supreme Court stated that “the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary.”

Lastly, two recent cases continue the trend discussed above. In Mr. Justice Chandrasekaraiah vs Janekere C. Krishna, which was a case about the Lokayukta appointment procedure, the Supreme Court cited Justice Krishna Iyer’s concurring opinion in Shamsher Singh vs State of Punjab, (1974) 2 SCC 831 for the proposition that the independence of the judiciary is a cardinal principle of the Constitution, and is “guarded by the relevant article making consultation with the Chief Justice of India obligatory.” (para 51) And in Madras Bar Association vs Union of India (Writ Petition 150 of 2006, decided on 25.09.2014), decided by a Constitution Bench of the Supreme Court, four judges surveyed the history of the cases described above, before holding:

 “It would be pertinent to mention, that the judgment rendered by this Court in S.P. Gupta case (supra) came to be doubted in Subhash Sharma v. Union of India, (1991) Suppl. 1 SCC 574. Thereupon, the matter was reconsidered by a constitution bench of nine Judges in, Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441. On the subject of preserving independence in respect of appointment of judges of the High Courts, as also their transfer, the position recorded earlier in S.P.Gupta case (supra) remained substantially unaltered. So also, of appointments of Chief Justices of High Courts and the Supreme Court. It was reiterated, that to ensure judicial independence, primacy in all these matters should be with the judiciary.” (Para 63)

A close reading of all these cases, therefore, reveals the following propositions:

• Judicial independence is part of the basic structure

• Judicial appointments are a facet of judicial independence, and therefore part of the basic structure (All India Judges Association vs Union of India; Union of India vs Pratibha Bonnerjea)

• The mechanism of conducting judicial appointments in a way that guarantees judicial independence (and therefore consistency with the basic structure) is set out in Article 124 (as interpreted in the Second Judges Case). Therefore, by necessary implication, Article 124 as interpreted by The Second Judges Case to require judicial primacy in appointments is part of the basic structure (Shamsher Singh vs State of Punjab; Mr. Justice Chandrasekaraiah vs Janakere C. Krishna)

• In any event, Article 124 has been expressly held to be part of the basic structure (Committee on Judicial Accountability vs Union of India)

• Separately, judicial primacy in matters of appointment has been held necessary to ensure judicial independence, and is therefore part of the basic structure (Subhash Sharma vs Union of India; Second Judges Case; Madras Bar Association vs Union of India; K. Veeraswami vs Union of India)

• Consequently, Parliament is not permitted to amend Article 124 in a manner that takes away judicial primacy in appointments, because this would in effect damage or destroy the basic structure of the Constitution, with respect to the basic feature of judicial independence

For these reasons, the 99th Amendment ought to be struck down.

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

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

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

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

The old Article 124 read as follows:

“(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Debating the NJAC: The Question of Revival – A Response (Guest Post)

(With the NJAC hearings winding down, we will be covering the issues extensively on this blog. To kick things off, Vasujith Ram responds to Sarangan Rajeshkumar’s essay on the question of the revival of the collegium, should the Supreme Court strike down the 99th Amendment)

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In a post published a couple of weeks ago, Mr. Sarangan Rajeshkumar has argued that the collegium will revive if the 99^th Constitutional Amendment (establishing the National Judicial Appointments Commission) is struck down. In this post, I will contend that the question of revival in case of constitutional amendments being struck down is one that will have to argued and adjudicated – in other words, it is not a settled position in constitutional law that the original provision will revive if the constitutional amendment is declared as unconstitutional.

Mr. Rajeshkumar opines, in the context of the Property Owners’ Association case: “However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival […] Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.” (Emphasis supplied)

It would to useful to lay down the history of litigation in the Property Owners’ Association case. In the said case, the primary issue before the Court was the constitutional validity of an amendment to the Maharashtra Housing and Area Development Act, 1976. The statutory amendment sought to attract the protection of Article 31-C, which, according to the State, bars any constitutional challenge on grounds of Article 14 or 19 if the statute has been enacted in furtherance of Articles 39(b) or 39(c).

Vide the 42^nd Amendment the constitutional protection hitherto given to laws giving effect to Articles 39(b) or 39(c), was expanded to laws in furtherance of any or all principles enshrined in Part IV of the Constitution. In Minerva Mills v Union of India, the said part of the 42^nd Amendment was declared unconstitutional. Minerva Mills, and later Waman Rao v Union of India as well as Sanjeev Coke Manufacturing v. Bharat Coking Coal were adjudicated on the assumption that the original Article 31-C stood revived.

Counsel for the petitioner in Property Owners’ Association case, Mr. F Nariman, contended that it was never argued in any of the above cases (including Waman Rao and Sanjeev Coke) whether the doctrine of revival would apply in case of unconstitutional constitutional amendments. Rather, he contended, the cases proceeded on the assumption that Article 31-C spontaneously revives. The three judge bench hearing the case agreed with Mr. Nariman. Opining that the question of revival in the context of unconstitutional constitutional amendments “did not arise for consideration in any of the those decisions which were rendered on a certain premise as indicated therein, which assumption is now seriously challenged…, the bench decided to place the matter before the Chief Justice for referral to a larger bench of not less than five judges.

The constituted five judge bench inexplicably did not deal with this question at all; instead it took up an entirely different question of interpretation of Article 39(b). It decided to refer the question to a larger bench. The constituted seven judge bench referred the matter of interpretation of Article 39(b) to nine judge bench (2013) 7 SCC 522.) The nine judge bench has so far not been constituted.

Thus question of revival of the original article post the declaration of unconstitutionality of the amendment still remains contested, without argument or adjudication. This has been clearly delineated by the three judge bench.

Cases such as Rashtriya Mill Mazdoor Sangh and Basantibai Mohanlal Khetan, which have been cited, are similar to Waman Rao and Sanjeev Coke: they proceed on the assumption that Article 31-C stands revived. The quoted portion from Mohanlal Khetan in the original post highlights the same: “Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala […] and Minerva Mills Ltd & Ors. v. Union of India & Ors. […], Article 31C reads as…” (Emphasis supplied). This is precisely what Mr. Nariman argued, leading to the Court holding that these cases proceeded on an assumption of revival, and that the doctrine would have to be argued and adjudicated (since it was contested for the first time in this case).

In the Bombay High Court case of Qucxova Cundo, has been cited. The Bombay High Court holds: “Even after Property Owners Association case, in the large number of cases set out in para 34 above, the Supreme Court has upheld the validity of the Legislation under consideration on the basis of unamended Article 31-C…” Only one case in the said para 34 (Rashtriya Mill Mazdoor Sangh, a two judge bench decision) was decided after Property Owners’ Association, the rest were decided before. In all these cases, the same logic (accepted by the three judge bench) applies: the cases were decided on the assumption of revival; the point was never contested before the Court.

My point is not to argue that the doctrine of revival will not apply to constitutional amendments. My limited argument is to the effect that we have no precedent to support this position. Moreover, since the doctrine of revival has been contested in this case it is appropriate that is argued and adjudicated.

(Vasujith Ram is a student at NUJS, Kolkata)

 

 

Guest Post: Why the Collegium will revive if the NJAC is Struck Down

(We are continuing our coverage of the key issues in the NJAC litigation. In this guest post, Saranagan Rajeshkumar argues that were the Supreme Court to strike down the 99th Amendment, the Collegium would revive).

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Over the past week, most individuals involved in this debate seem to be of the opinion that if the Supreme Court proceeds to strike down the 99^th Amendment Act the country will then face a void, where there will be no process for appointment of judges to the higher judiciary. Even the Union, in its submissions, seems to be of this opinion. This is because the collegium system of judicial appointments is an institution fashioned by the Supreme Court based on its construction of the phrase “consultation with such of the Judges of the Supreme Court and of the High Courts” under Article 124. Thus the Union believes that if these words are removed from the constitution, then even in the case the amending act is struck down, the words themselves will not revive.  However, this is far removed from the actual position of law.

It is true that when it comes to ordinary statutes, a repeal of the statute would mean that the statute had never existed in the first place. Thus, in the context of an amendment – since it involves the repeal of the earlier provision of law and then the enactment of a new one – when an amending act is struck down the pre-amendment version of the act will not revive. However, there are three exceptions to this rule, collectively known as the “doctrine of revival”.

Firstly, when an act is struck down for want of legislative competence(such as when it is not of a subject mentioned in the relevant constitutional list) then the amending act itself is deemed to be ‘still-born’. The implication of this is that the amending act itself is held to have never been in existence, thus reviving the old act.  The second exception is invoked when an act is struck down as being violative of one of the fundamental rights under the constitution. The result, again, is that the act, as it stood prior to the amendment, will revive. These exceptions have been clearly laid down by the Supreme Court in the case of State of Tamil Nadu v Shyam Sunder.

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, is something which is yet to come up before the Supreme Court and has till date only been addressed by the High Court of Madhya Pradesh in its decision in Sharique Ali v State of Madhya Pradesh. In this case, the court held “any law that corrodes the basic essence of the Constitution cannot be regarded as a good law and when the same is struck down the original provision rises like phoenix and the doctrine of revival gets attracted”. Therefore, even when an amending act is violative of the basic structure of the constitution, and not any specific provision, it must be held to have never been in existence, thus reviving the old law. It is this test of the basic structure, which will be employed in deciding the constitutionality of the NJAC. Thus, if the NJAC is struck down as being violative of the basic structure, then Article 124 of the Constitution as it stood prior to the NJAC amendment should revive and the collegium should also be restored as well.

Admittedly, these three exceptions were laid down in the context of ordinary statutes and not that of constitutional amendments. Ordinarily it is true that statutes must be treated on a different footing as compared to constitutional amendments, such as for the purpose of Article 13. But this is because, as the Supreme Court has held, amendments are made in exercise of constituent power, while laws are made in exercise of legislative power. The difference in the kind of power that the parliament exercises will have no bearing upon the doctrine of revival. Consequently, the logic that an act that violates the Constitution is still-born, should apply with equal force to an amendment that violates the basic structure.

Nonetheless, the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vState of Maharashtra, which was then referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case. In this case, the question that was to be decided was whether subsequent to the case of Minerva Mills v Union of India, which struck down parts of Article 31C of the Constitution, the un-amended Article 31C would be revived?

However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival. Since the case concerned an exception under the constitution under Article 31C, given to statutes passed pursuant to Articles 39(b) and (c), the question of interpretation of the two articles would be irrelevant if the doctrine of revival did not apply. Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.

The implication of this is that the Supreme Court, in the case at hand, will not be prevented from deciding on the revival of the Collegium since the referral 9-judge bench is not on a similar question.

It must be noted that even prior to Property Owners Association, in the case of Rashtriya Mill Mazdoor Sangh v Union of India and in State of Maharashtra v Basantibai Mohanlal Khetan, the Supreme Court, by applying the un-amended Article 31C, had implicitly accepted its revival. In fact, in the later case, it was stated:

” Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. S.C.R. 1. and Minerva Mills Ltd & Ors. v. Union of India & Ors. [1981] 1 S.C.R. 206, Article 31C reads as “notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on  the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19.”

Considering that Minerva Mills was the case that struck down the amended 31C, this paragraph provides strong support to the doctrine of revival.

These decisions were of particular relevance in the case of Shri Qucxova Sinal Cundov Union of India, where the Bombay High Court, considering that the Supreme Court had upheld the validity of un-amended Article 31C, held that the High Court would have no option but to accept the same as binding. The Court held that despite the existence of the common law rule that the striking down of an amending act would not revive the old law, un-amended Article 31C must be considered valid.

Thus, if the logic which upholds the validity of un-amended Article 31C were to be extended to Article 124, then even if the court were to strike down the validity of the 99^th Amendment Act, the old Article 124 would be revived and along with it the collegium.

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(Sarangan is a third-year student at NLSIU Bangalore)

Guest Post: The NJAC and an unconventional constitutional convention

(In this guest post, Akhil Deo argues that the Second Judges Case got it wrong in treating judicial primacy over judicial appointments as a binding constitutional convention, and part of the basic structure.)

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The Groundwork

The Supreme Court of India (SC) is currently hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC), and replaces the existing collegium system. One of the issues for consideration, which this essay will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

In what is popularly referred to as the Second Judges Case, where the Court held that primacy must be given to the Chief Justice in the matter of appointments, the SC expressed the following view on constitutional conventions: (at paragraph 449)

 “Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

The text of Article 124 of the Constitution of India, before the amendment, provided that the President appoints every judge of the Supreme Court, and that while appointing judges other than the Chief Justice he shall ‘consult’ the Chief Justice.

In paragraphs 469 and 470 the Court found that by 1948, a convention had been established that the appointment of a judge could only be made with the concurrence of the Chief Justice. Further, it found that almost all subsequent appointments were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three step test in determining the existence of a convention – i.e., (i) the availability of precedents, (ii) that the actors feel bound by the rule and (iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph 474);

 “…the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive…”

In paragraph 473, as a justification the Court stated that the independence of the judiciary is a basic feature of the constitution and that the exclusion of the final say of the executive in the matter of appointment of judges is the only way to maintain the independence of the judiciary. Further the Court opined that the judiciary itself will be more well informed compared to the executive when it comes to judges suitability. Therefore the court interpreted the word ‘consultation’ in Article 124 to mean ‘concurrence’

The 99th Amendment introduces Article 124A which lists the composition of the NJAC as the Chief Justice, the next two most senior Judges of the SC, the Law Minister and two eminent persons nominated by the Prime Minister, the Leader of Opposition and the Chief Justice. Critiques of the Amendment argue that this clearly violates the basic feature of independence of the judiciary-by not giving primacy to the opinion of the Judicial members.

The crux of the present debate before the Court is that if it has already been held that the exclusion of an executive voice, as a matter of convention, in the matter of appointment is the only way to maintain the independence of the judiciary (which is part of the basic structure), the 99^th Amendment is void for violating the basic structure. This position is aggravated by the fact that the Court in the NJAC case refused to refer the issue to a larger bench, meaning that it is bound by the ratio in the Second Judges Case.

Is the 99th Amendment already doomed?

There are three reasons why the constitutional convention argument is not tenable. First, the text of the Constitution never suggested that primacy of the judiciary was required in the matter of appointments. In Mahesh Chandra Gupta v. Union of India the SC had itself held that the appointment of a judge is an executive function of the President (even the smallest discretion in the exercise of this function, however, was wrestled away by the Court in the earlier Second Judges case). During the Course of the Constituent Assembly Debates, Dr. BR Ambedkar stated– “I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” Even Justice Ahmadi in his dissenting opinion in the Second Judges case(supra, at paragraph 395, 403) argued that the original intent of the framers did not support an interpretation of the constitution that conferred primacy on the Chief Justice and that such a change would require a constitutional amendment.

Second, reliance on English authorities on the subject of constitutional conventions is questionable with respect to India insofar as the English constitution is unwritten. Scholarly work on conventions in England primarily dealt with codes of political behavior and not express constitutional provisions. Therefore, Jennings’ enquiry was often with respect to political behavior, and not justiciable or even express codes of conduct. Consequently, its application to a written constitution should be, at most, limited to governing unwritten codes of behavior and not those which are explicitly and clearly provided for by the constitution. A similar view was adopted by The Calcutta high Court in Ashok Sengupta v. Union of India(1996 SCC Online Cal 234), where despite the existence of an English convention that the Prime Minister is generally appointed by the elected members of parliament, the Court refused to interfere if an appointment is made otherwise by the President in light of textual Constitutional provisions, opining that- “A third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention.”

Third, the convention in the second judges case was unconventional insofar as it was held to be binding, because constitutional conventions are ordinarily regarded as not being enforceable in Court. There is some precedent in India that accepts the proposition that constitutional conventions are part of constitutional law, for example most recently in the Madras Bar Association case, where the Supreme Court held that the National Tax tribunal(NTT) was unconstitutional. In paragraph 131 of the judgment the Court held as follows:

 “This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature.”

However, there is sufficient authority that contradicts this position. For example, the Canadian Supreme Court in the case of Amendment of the Constitution of Canada, Re , refused to enforce a convention that state consensus must be obtained before enacting a law that concerns them, finding that “What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” The Indian Supreme Court had also recognized as much in the 1977 case of State of Rajasthan v. Union of India, finding that “… it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be.” Again in the Judicial Accountability case, the Supreme Court refused to interdict a member of the Judiciary from continuing to perform judicial functions pending an inquiry into alleged misbehavior. In paragraph 62, the Court rejects the argument that convention requires him to do so and held as follows:

“It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose.”

The collegium system versus the constitutionality of the NJAC

While the above analysis is critical of the Courts’ application of constitutional conventions, the larger question with respect to the Second Judges case and its impact on the NJAC is whether or not the convention of giving primacy to the opinion of the Chief Justice forms a part of the basic structure of the constitution, thereby making it impervious to an amendment.

In light of my arguments above, I suggest that ultimately, what is undoubtedly a part of the basic structure, is the independence of the judiciary. Consequently, both the seemingly binding conventions in is the second judges case and even in the NTT judgment should only be seem as supplementing the independence of the judiciary and not a part of the basic structure in their own right. Therefore, if following a particular convention is not the only way to ensure the independence of the judiciary, then (even if binding) it should be amenable to amendment under Article 368.

With respect to the NJAC there are two reasons why the convention of giving primacy to the Chief Justice is no longer tenable. First, an executive role in only the appointment process does not imply a disregard for the independence of the Judiciary as a whole. Other facets of an independent judiciary, for example, include a fixed tenure and salary, difficult impeachment procedure etc. Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of appointments is not a predominant constitutional feature in other parts of the world, for example, The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman.

Second, the final rule of Jennings’ three-pronged test for determining whether a convention exists is the necessity of a reason for its existence. The reason for the collegium system, where judges appoint judges, according to the Court in the Second Judges Case was the ability of the judiciary to better determine the suitability of their peers. Arguably, this no longer stands true with respect to the collegium. Several prominent jurists and academicians have criticized the collegium system for being opaque with no sense of accountability (see generally here, here and here), and further, as an extra constitutional system that finds no support from the text of the constitution leading to an erosion in the quality of judges that it produced.

Conclusion

These arguments present two propositions:

• Conventions should not be considered binding by Courts and that the courts must refrain from both formulating and enforcing them, and
• The convention of judicial ‘primacy’ was linked to the basic structure in the Second Judges case. However, separated from its nexus with the basic structure, such a convention giving primacy to the judiciary in the matter of appointment, even if accepted as binding, becomes part of ordinary constitutional law, meaning that it is amenable to the amendment process under Article 368 of the Constitution and no longer acts as a deterrent to the validity of the 99th Amendment

 

(Akhil Deo is a third-year student at the Hidayatullah National Law University.)