After 31 days of argument, a five-judge bench of the Supreme Court has reserved judgment in what will rank amongst the most significant constitutional cases before the Court in recent years. Since the Supreme Court’s decision in the ‘Second Judges Case’ in 1993, appointments to the Court have been made through what has come to be known as the ‘collegium’ system, in which the three most senior judges of the Court play a decisive role in the appointments process. The collegium system faced increasing criticism, and Parliament attempted to replace it with an appointments process led by a National Judicial Appointments Commission (NJAC) through a constitutional amendment, and a statute that gives effect to the amendment.
Chintan Chandrachud This piece will not consider the relative merits of the collegium system and the NJAC. Although that is a most significant matter, it has been debated extensively. Instead, the remedies available to the Supreme Court — a different and less studied aspect of the case — will be explored.
As with the NJAC case, on most occasions when the law is challenged on the basis that it is unconstitutional, the challenge is conceived of in terms of a binary, whether to strike down or not strike down the law.
Matrix of remedies However, the matrix of remedies available to the court is far more complex than this. The Supreme Court has, on several occasions, described striking down as a ‘grave step’ and a ‘measure of last resort’. Therefore, the most common response to a finding of unconstitutionality is not to strike down the unconstitutional law, but to interpret it in a way that is consistent with constitutional requirements.
In the NJAC case, the Supreme Court has several intermediate options falling short of the strike-down power. This piece will consider four interpretive possibilities, which can be distinguished based on whether they address the composition or the functioning of the NJAC.
Composition of the NJACDefining ‘eminent persons’ more narrowly: Amongst the arguments that the petitioners have made is that the constitutional amendment makes no attempt to define who the two eminent persons on the NJAC will be. This, it is argued, can give rise to concerns about the nomination of people with favourable political leanings or people who clearly lack the credentials to judge the performance of candidates. The Supreme Court could seek to remove these concerns by specifying a set of criteria — or qualifications — that the eminent persons would need to hold. These criteria could include a degree in law or allied disciplines, a minimum number of years of practice before the Supreme Court, or a designation of seniority by the Supreme Court or High Courts. Conversely, the Court could prescribe a set of disqualifications — for instance, that those who are charged with serious criminal offences will not be considered ‘eminent’.
Modifying the ‘eminent persons’ appointments process: The constitutional amendment provides that the eminent persons on the NJAC are to be appointed by a Committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The argument here is that the politicians could collude to nominate a person who, in the opinion of the Chief Justice, lacks the credentials to be part of the NJAC. The Supreme Court may seek to avoid this situation by interpreting the provisions to the effect that the Chief Justice has a veto power in the appointment of eminent persons. This would mean that the Chief Justice would always need to be in the majority, and a 2-1 decision, with a dissenting note from the Chief Justice, would not result in an appointment.
Functioning of the NJACAn exclusive veto power for the judges: Neither the constitutional amendment nor the statute giving effect to the amendment make it clear how the six-member NJAC is expected to take its decisions. Presumably, the ideal scenario is for decisions to be made by consensus. But where consensus is not possible, the alternative is likely to be a majority decision-making procedure.
The statute specifies that no person shall be recommended for appointment to the Supreme Court if any two members disagree with the appointment. The argument against this requirement is that both sides — the judges and the non-judges — have a veto power over appointments. Arguably, the Law Minister together with one or more of the eminent persons could exercise their veto against independent-minded candidates.
In order to grant the judges a degree of primacy in the process, the Supreme Court could interpret this provision as applying only to the judges. This would, in other words, mean that assuming that all six members of the NJAC participate and vote, a successful appointment would require the concurrence of at least two of the three judges on the Commission.
Standard operating procedures for appointments : Once again, neither the constitutional amendment nor the statute specifies the procedures that the NJAC is expected to follow while making decisions on appointments. Instead, important issues such as the level of publicity to be given to reports of the Commission, the quorum for Commission meetings, and whether the rejection of candidates requires reasoned explanation, has been left to the domain of rules and regulations.
The argument that is often made against the NJAC is that it engenders the same kind of opacity that the collegium is often criticised for. The Supreme Court could seek to address these concerns by prescribing a set of standard operating procedures that the NJAC would need to follow in order to comply with constitutional requirements. The procedures could, for example, include the requirement that those candidates who are considered (but not appointed) be provided with a full set of reasons for their non-appointment.
In prescribing these procedures, the Supreme Court would have to balance the competing considerations of ensuring an open and transparent system of appointments on the one hand, and protecting the integrity and standing of candidates on the other.
Middle path There are many reasons for which the middle road - interpretation consistent with constitutional requirements — seems intuitively appealing in this case. It would probably enable all sides to claim victory. The government could claim that its amendment secured the Court’s stamp of endorsement, the petitioners could claim that they succeeded in having important safeguards infused into the appointments process, and the Court could send the message that it has effectively protected constitutional rights without thwarting the democratic will.
A legislative sequel or push-back from Parliament would be much less likely in the event of an interpretive solution than if the constitutional amendment were struck down. After all, if the amendment is struck down, it is possible that the Court’s judgment will indicate the sort of Commission that would have passed constitutional muster, giving Parliament the opportunity to make a second attempt at amending the Constitution with greater information at its disposal.
Nevertheless, the Court should be conscious of the risks associated with radically modifying the effect of the constitutional amendment. Radical interpretive exercises tread the thin line between judicial interpretation and legislative amendment. A fairly recent attempt at modifying the effect of a law (in which the provisions for appointment of Information Commissioners under the Right to Information Act 2005 were recast) came under severe criticism, following which the Supreme Court stepped back from its judgment in a review petition.
Most importantly, some of the interpretive possibilities articulated here may produce an appointments process that closely resembles the existing collegium system. Thus, the NJAC could become the collegium in disguise — in which case, the Supreme Court would have successfully struck down the amendment without being transparent about doing so.
(Chintan Chandrachud is a PhD Candidate at the University of Cambridge.)
