The story so far: Vice-President Jagdeep Dhankhar last week entered the heated debate between the Central government and the Supreme Court over the matter of judicial appointments. Referring to the 2015 verdict of the top court which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment, Mr. Dhankhar asked how the judiciary could have run down a unanimously passed constitutional provision which reflected “the will of people”.
The seven-year-old verdict has been invoked by both sides- while the Court asked if the government’s “unhappiness” over the failure of the NJAC was why it was sitting on the names recommended by the Supreme Court Collegium, Law Minister Kiren Rijiju has commented on public fora about how the NJAC could have provided a transparent alternative to the decades-old Collegium system of appointing judges.
What was the NJAC? How did it differ from the collegium system?
In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system. The two Bills were ratified by the required number of State Legislatures and got the President’s assent on December 31, 2014.
Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country. Article 124(2) states “every Judge of the Supreme Court shall be appointed by the President” after “consultation” with the judges of the Supreme Court and the high courts, “as the President may deem necessary”. So, while the collegium system itself does not figure in the Constitution, its legal basis is found in three Supreme Court judgments — usually referred to as the ‘Judges Cases’ — concerning the higher judiciary.
In order to replace the system, which received criticism over the years for its lack of transparency, the Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124. Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system, Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts, and Article 124C accorded express authority to Parliament to make laws regulating the the NJAC’s functioning. The NJAC was to be composed of:
- The Chief Justice of India as the ex officio Chairperson
- Two senior-most Supreme Court Judges as ex officio members
- The Union Minister of Law and Justice as ex officio member
- Two eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)
The NJAC Act, meanwhile, prescribed the procedure to be followed by the Commission to appoint judges. The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended on the basis of ability, merit, and “other criteria specified in the regulations”. The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
In the collegium system, on the other hand, a group of the senior-most judges makes appointments to the higher judiciary. This system has been operational for nearly three decades.
Prior to this, the appointment of judges was done by the President’s seal in consultation with other judges if he/she deemed fit. The collegium system was born out of years of friction between the judiciary and the executive. This hostility was exacerbated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s.
The S.P. Gupta case (December 30, 1981) or the First Judges Case gave the executive primacy over the judiciary in judicial appointments, while observing that the President’s consultation with the CJI should be “full and effective”.
The Second Judges case (October 6, 1993) gave back primacy to the judiciary. “The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter,” the verdict reasoned. The nine-judge bench held that word “consultation” in Article 124(2) should be read to mean “concurrence” or agreement of the CJI. This led to the introduction of the initial version of the collegium, where the CJI would consult two of his senior-most judges on appointments, and this “collective” opinion would have primacy. Thus, the executive element in the appointment process was reduced to a minimum. However, a deeper reading of the 1993 verdict shows that the Bench emphasised that the appointment of judges was a “participatory constitutional function”, and certain “constitutional functionaries” were “collective repositories”.
“The joint venture of all the constitutional functionaries will help to transcend the concept of primacy between them,” said the court.
The Third Judges case in 1998, which was a Presidential reference, laid down that the CJIs should consult with a plurality of the four senior-most Supreme Court judges for judicial appointments and transfers, and the collegium in its present form came into existence.
Why was the NJAC challenged in court?
Even before the NJAC Bill was signed into law and the 99th Amendment ratified, multiple petitioners had approached the Supreme Court in 2014 challenging the constitutional validity of the Bills. But the Court did not admit the pleas, citing that it was “premature” to interrupt an ongoing legislative process.
In early 2015, the Supreme Court Advocates-on-Record Association (SCAORA) filed a plea challenging the provisions of what were now laws. The NJAC never became operational as the then CJI did not find it appropriate to be a part of the commission when it was being challenged in the top court.
SCAORA contended that both the Acts were “unconstitutional” and “invalid”. It argued that the 99th Amendment which provided for the creation of the NJAC took away the “primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or “suspended by majority of three non-Judge members”. It invoked the Second Judges Case to say that this primacy had to be protected. It stated that the Amendment “severely” damaged the basic structure of the Constitution, of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part.
Independence of Judiciary and the “basic structure” doctrine
It also contended that the NJAC Act was itself “void” and “ultra vires” the Constitution as it was passed in both Houses of the parliament when Articles 124(2) and 217(1) as originally enacted were in force, and the 99th Amendment had not receivedPresidential assent.
What were the arguments between the Centre and the Supreme Court?
Former Attorney General Mukul Rohatgi, for the Union government, argued in court that the Second Judges case invoked by the petitioners, was not valid in the case of the NJAC as the “very basis” of the nine-judge ruling was now gone. He explained that the 1993 bench of the Supreme Court had interpreted Article 124 and held that the term “consultation” was to be read as “concurrence” ), but since the 99th Amendment had replaced that part of the text to say that judges had to be appointed “on the recommendation of the National Judicial Appointments Commission”, the Second Judges case was not relevant.
The Centre also argued that the Act in no way took away the primacy of the judiciary but in fact, diluted the power of the executive as only one member, the Law Minister, was in the NJAC as opposed to three SC judges. It also said that the Amendment was “perfectly consonant” with the basic structure as it strengthened the “independence of the judiciary, checks and balances and democracy”, which were “all part of the basic structure”.
Then Solicitor General Ranjit Kumar argued that the collegium was a “failure” and worked on a system of “intra-dependence”, where there was “no transparency”. Mr. Rohatgiargued that the NJAC should be given a chance since it had a component of “hit and trial” like every experiment.
On October 16, 2015, the five-judge bench ruled with a 4:1 majority, that the NJAC was “unconstitutional” and violated the “basic structure of the constitution”. In the judgement running into 1000 pages, former CJI Justice J.S. Khehar penned his majority opinion followed by separate concurring opinions by Justices Madan B. Lokur, Kurian Joseph, and A.K. Goel. Justice J. Chelameswar was the only dissenter on the Bench.
“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar had said.
Justice Chelameshwar, meanwhile, pointed out in his dissent that “transparency” was a vital factor in “constitutional governance” and the collegium proceedings were “absolutely opaque” and “inaccessible” to the public and history. He wrotethat the “assumption” that the primacy of the judiciary in the appointment of judges was a basic feature of the Constitution was “flawed” and supported Mr. Rohatgi’s submission that the absolute exclusion of the executive was violative of the basic feature of “checks and balances”.
Significantly, the Bench also admitted that all was not well even with the collegium system of “judges appointing judges”, and that the time was ripe to improve the system of judicial appointments, inviting the government to work on improving the collegium system.
What happened to the bid to reform the collegium?
The appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure (MoP), which was issued in 1947 and updated in 1999. The court told the Centre in 2015 to come up with a new MoP in order to make the collegium’s proceedings transparent. This exercise, however, resulted in a year-long deadlock between the executive and the judiciary, over some clauses of the MoP. In 2017, the MoP was finalised but was not adopted the government said it was reconsidering the issue.
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