The decision to revive the collegium was born out of the sheer necessity to avert “chaos” and not to create a situation in which the President may become a “tyrant” by assuming absolute powers to appoint judges on his own.
This is how the Supreme Court’s Constitution Bench explained its >decision to restore the collegium , striking down the National Judicial Appointments Commission (NJAC) and the Constitution (Ninety-ninth Amendment) Act with one blow.
The Bench’s move to bring back the collegium was the subject of a >stinging blog by Union Finance Minister Arun Jaitley on Sunday. “Having struck down the 99th Constitutional Amendment, the court decided to re-legislate. The court quashed the 99th Constitutional Amendment. The court is entitled to do so. While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do. This is the third error in the judgment,” he wrote on Facebook.
But Justices J.S. Khehar, Madan B. Lokur and Kurian Joseph on the Constitution Bench have separately explained that they had no choice but to make the collegium “operative” to avert chaos in a situation in which neither the NJAC nor the collegium was functional.
Justice Lokur said such a “vacuum” would run the danger of creating a “tyrant” in the President, who would enjoy absolute powers to appoint judges to the Supreme Court and the High Courts.
In fact, the judgment records how Solicitor-General Ranjit Kumar had argued against the revival of the collegium in case the Bench decided to strike down the Constitution (Ninety-ninth Amendment) Act. Mr. Kumar had contended that the collegium ceased to exist with the coming of the NJAC.
“If the construction suggested by the learned Solicitor-General was to be adopted, it would result in the creation of a void. We say so, because if neither the impugned constitutional provision nor the amended provisions of the Constitution would survive, it would lead to a breakdown of the constitutional machinery, inasmuch as, there would be a lacuna or a hiatus, insofar as the manner of selection and appointment of judges to the higher judiciary is concerned,” Justice Khehar explained.
Justice Lokur said such a “void” would give “absolute powers to the President to appoint a judge to the Supreme Court without consulting the Chief Justice of India (and also to appoint a judge to a High Court).” “The result of accepting his [Mr. Kumar’s] submission would be to create a tyrant,” he wrote.
In fact, Justice Lokur points to how the Bench confronted the Solicitor-General in court with the aftermath of his submissions, and asked whether the government wanted the President to assume such absolute powers and become an Imperium in Imperio as far as the appointment of judges was concerned.”
“The learned Solicitor-General smiled, but obviously had no answer to give,” Justice Lokur recounted.
In his separate judgment, Justice Kurian said a constitutional amendment was a “substitution” and once the substitution was held to be bad in law, the original provision would return to life. “Once a constitutional amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive. That alone can be the reasonably inferential conclusion,” he held.
Judging the Judge-maker
The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.
> Read moreThe citizen and the politics of the verdict
The judgment is founded on a mistrust of government, lack of respect for the people and unquestioned faith in the competence of judges
> Read MorePerils of the messaiah complex
The NJAC judgment is, at its core, founded on a combination of mistrust of government, lack of respect for the people of India and with unquestioned faith in the absolute competence of judges.
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