Both Houses of Parliament have accorded their legal imprimatur to the 99th >Constitution Amendment Bill . Once ratified by at least half of the country’s State legislatures, and once the President’s assent is secured, the amendment will establish a National Judicial Appointments Commission. The NJAC, the amendment provides, shall comprise the Chief Justice of India as its ex officio chairperson, the two senior-most judges of the Supreme Court following the Chief Justice, the Law Minister, and two ‘eminent persons’ to be nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition. The NJAC will be responsible for making binding recommendations to the President for appointing judges to the Supreme Court and to various High Courts.
Criticism of commission In the immediate wake of Parliament’s approval of the amendment, however, criticism of the proposed commission, which will replace the collegium in making judicial appointments, has been widespread. Some, such as the Supreme Court Advocates-on-Record Association, have already moved the Supreme Court challenging the law for violating the Constitution’s basic structure. The focus here has been not only on the composition of the NJAC, but also its workings as provided by the National Judicial Appointments Commission Bill, 2014, which was passed simultaneously with the Constitution Amendment Bill. Broadly, the detractors argue that the proposed laws vest excessive power in the executive, including a potential ability to veto nominations, thereby impinging on the independence of the judiciary. But these arguments overlook a number of key considerations. The new laws have their deficiencies, but they are a product of sustained discussion across all political lines and are examples of a non-partisan process of law making. What’s more, they have allayed fears that the executive would exercise unbridled control over judicial appointments. And most crucially, the laws would obliterate the collegium system which is not only opaque and extra-constitutional, but also, as evidence of the recent past has shown, an abject failure.
In the Constitution (as originally enacted), the power to appoint judges to High Courts and the Supreme Court rests with the executive. Article 124 of the Constitution 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. Likewise, Article 217 provides that the President shall appoint judges to the High Courts after consultation with the Chief Justice of India, the Governor of the State, and in case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned.
Independent of political influence When drafting the Constitution, the Constituent Assembly took great efforts to ensure that the judiciary was independent of any coercive political influence. To that end, it introduced a number of significant provisions in the Constitution. For example, the judges of the Supreme Court and the High Courts serve not at the pleasure of the President, but until they attain a fixed age; what’s more, salaries and allowances of the judges are charged from the Consolidated Fund of the State (which is incapable of being a subject of a vote by a Legislative Assembly); discussion in the State legislatures on the conduct of any judge is expressly barred; powers are conferred on the High Court to punish for contempt of itself; and, significantly, judges of the higher judiciary can be removed only through a complicated process of impeachment by Parliament. But, as valued as judicial independence was to the Assembly, it did not see the vesting of the ultimate power of appointing judges on the executive as an infraction of that principle; on the contrary, it viewed such power as a vital cog in the checks and balances required to ensure a proper separation of powers. A broad process of consultation with several important authorities was mandated to further validate the system, but the ultimate authority was placed on the President. Such a system, the Assembly felt, would instil in the courts, which were given wide powers of judicial review including the power to strike down laws made by Parliament, democratic legitimacy, and would thereby serve as an effective check on judicial power.
“The new laws have their deficiencies, but they are a product of sustained discussion across all political lines, and are examples of a non-partisan process of law making”
When, in Union of India v. Sankal Chand Himatlal Sheth [(1977) SCC (4) 193], the Supreme Court found that the word “consultation” did not mean “concurrence,” it was guided by these objectives. The Court held that the opinion of the Chief Justice in making transfers was not binding on the executive, although a departure from his or her opinion could be made in exceptional circumstances. While this decision was partially affirmed by a majority of seven judges, insofar as the appointment process is concerned in the First Judges Case ( S.P. Gupta v. Union of India , 1981 Supp (1) SCC 87), the Supreme Court dramatically altered the position in the Second Judges Case ( Supreme Court Advocates-on-Record Association v. Union of India , (1993) (4) SCC 441). In the Second Judges Case, it ruled that the word “consultation” in Articles 124 and 217 denoted “concurrence,” and that primacy in making judicial appointments is vested with the Chief Justice. This decision was later affirmed with certain modifications in the Third Judges Case (In re Presidential Reference, (1998) 7 SCC 739), and it was held that the ultimate authority to make appointments to the Supreme Court lay with a collegium of judges comprising the Chief Justice and his or her four senior-most colleagues.
Through the Second and Third Judges cases, the Supreme Court virtually appropriated unto itself the power to appoint judges. As the nature of appointments made in the last two decades has showed, the decisions exemplified a concern expressed by James Madison in the American context: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective,” he said, “may justly be pronounced the very definition of tyranny.” Had the Supreme Court’s decisions in these cases been substituted by a Constitution amendment by Parliament to the same effect, it is trite to say that such a law would have been liable to be invalidated for violating the Constitution’s basic structure.
Replacing a failed system Now, through the 99th Constitution Amendment Bill and the NJAC Bill, Parliament has merely sought to realign the process of appointments in consonance with a general principle of separation of powers. It is therefore surprising to note that the Bills have met with such vigorous dissent from important quarters. Quite contrary to the fears propagated by its critics, the proposed laws will replace a failed system with a process that maintains, at the least, an element of fidelity to the Constitution’s ideals. The composition of the NJAC may not be perfect, but it is, in fact, tilted in favour of the judiciary. If any two of the three judges on the panel believe that a candidate is unsuitable for appointment, they can together veto the elevation of such a nominee. The Union government, on the other hand, merely has a single vote in the NJAC, and cannot, by itself, place a proscription on any appointment. It will require the additional backing of either one of the judges or one of the ‘eminent persons’ for the government to thwart any nomination.
Any fears that the composition of the NJAC will vest an unrestrained power in the executive therefore appear unfounded. Even in the U.K., where the Judicial Appointments Commission is completely divorced from executive involvement, the Lord Chancellor retains the power to reject a nomination made by such a commission. The NJAC might not be as broadly constructed as the U.K. Commission, but its constitutional sanction will infuse in the process of judicial appointments greater transparency and an enhanced democratic involvement, as is the case in the U.K. No doubt Parliament will have to introduce through legislation, as part of the NJAC, suitable infrastructure including the presence of full-time staff, to aid its members to arrive at considered decisions. The failure to include such a support structure is one of the collegium’s many shortcomings. But Article 124C, introduced by the new ConstitutionAmendment, allows Parliament that authority. Needless to say, any legislation introduced by Parliament in this regard, if in violation of any provision of the Constitution or the Constitution’s basic structure, can be struck down by the courts as unconstitutional. But the argument that the 99th Constitution Amendment Bill in itself and by itself is ultra vires the Constitution for infracting the document’s basic structure is, at best, tenuous.
Given that the originally enacted Constitution placed overriding power on the executive to make judicial appointments, it is unfathomable how the proposed system, which accords the judiciary not merely a consultative role but a determinative one, can be found to infringe the independence of the judiciary. The pre-existing provisions, which the drafters of India’s Constitution inserted to ensure judicial autonomy, continue to remain in force. It is only the process of appointments, which was arrogated by the judiciary unto itself, which has been calibrated by the proposed Constitution Amendment. This realignment is both in keeping with the original intent of the Constitution’s framers and also with the larger principle of separation of powers that pervades the document.
(Suhrith Parthasarathy is an Advocate in the Madras High Court.)