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An anti-constitutional judgment

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It is indisputable that judicial independence, based on the principle of separation of powers, is part of the Indian Constitution’s basic structure. However, the majority judgment in the NJAC case has wrongly interpreted judicial independence to mean primacy in appointments.

In the aftermath of the Supreme Court’s >verdict that invalidated the 99th Constitution Amendment, rendering nugatory the National Judicial Appointments Commission (NJAC), a popular narrative has entered our conscience: that the commission is not a credible alternative to the Supreme Court’s ‘collegium.’ This theory is possibly based on an inherent distrust of the government exacerbated, as it is, by the present regime’s authoritarian proclivities. But such ideas, for all their apparent forcefulness, ought to be extraneous to any proper debate on the legitimacy of the Supreme Court’s ruling.





What we must really consider in analysing this verdict is not our respective concerns about what makes for good policy, but rather, what interpretation would ensure the greatest conformity to the Constitution’s text, to the intention of its framers, and to the document’s finest aspirations.

When viewed thus, the majority judgment in this case is profoundly unsatisfactory. The verdict upholds an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament. What’s more, the judgment fails to adequately answer the fundamental question at the root of the controversy: how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure? Consequently, the decision acquires an entirely political character. It is subsumed not by constitutionalism but by an anti-democratic temper.

Second judges case

As we are, by now, well aware, the Constitution, in Articles 124 and 217, is crystal clear in its mandate. It accords to the President the power to appoint judges to the Supreme Court and to the various High Courts. In performing this function, the executive is required to compulsorily consult with certain persons. To make appointments to the Supreme Court, the Chief Justice of India (CJI) must always be consulted. In elevating persons to a High Court’s bench, in addition to the CJI, the Chief Justice of that High Court and the Governor of the State concerned, acting through his or her Council of Ministers, must be mandatorily conferred with.

In 1993, in a case commonly referred to as the Second Judges Case, the Supreme Court, sitting as a nine-judge bench, interpreted the word “consultation,” used in Articles 124 and 217, to mean concurrence. In making appointments to the higher judiciary, the Court held, the executive was bound by the advise of the CJI — who acted in concert with a group that also comprised his two (later four) senior-most colleagues, a body that we today call the “collegium.”

No collegium mandated by Constitution

Whichever way one wants to look at this collegium — whether with contempt or with reverence — what’s indubitable is that the Constitution speaks of no such body. Articles 124 and 217, unlike some of our fundamental rights, are not couched in abstract terms that require an interpretive exercise. This anointed collegium, therefore, was nothing but a pure creation of the Second Judges Case.

During the Constituent Assembly (CA) debates, Alladi Krishnaswamy Iyer had warned against vesting untrammelled power in the judiciary, which, he believed, could engineer the creation of a super legislature. This is precisely the role that the Supreme Court performed in the Second Judges Case, by effectively rewriting the Constitution to create a self-serving body, usurping powers from both Parliament and the executive. In many ways, the enactment of the 99th Amendment was intended at redressing this imbalance; it was Parliament’s effort at salvaging some of its lost space in our constitutional structure.

The Amendment’s object was to replace the collegium with a more broad-minded forum, which would provide a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons outside the constitutional framework. Through the Amendment, Parliament introduced, among other provisions, three key articles. The first, Article 124-A, created the National Judicial Appointments Commission (NJAC), which would comprise the CJI, his two senior-most colleagues, the Law Minister, and two eminent persons, who would be jointly appointed by the Prime Minister, the Leader of the Opposition and the CJI. The second, Article 124-B, vested in this NJAC the power to make appointments to both the Supreme Court and the various High Courts. And the third, Article 124-C, accorded express authority to Parliament to make laws regulating the manner of the NJAC’s functioning.



The ability of the two ‘eminent persons’ to veto any appointment flowed not from the 99th Constitutional Amendment but the NJAC Act. Therefore, it defied logic to render the entire amendment invalid solely because of this provision



The petitioners argued against this Amendment, and each of its provisions, calling it a nullity and asserting that the Constitution’s basic structure stood violated by the enactment. Plainly read, Article 368 grants Parliament a virtual plenary power to amend the Constitution. However, in 1973, in Kesavananda Bharati vs. State of Kerala, a 13-judge bench of the Supreme Court read certain implied limitations into this power. The Constitution, the Court held — through the slimmest of majorities — could not be read in a manner that destroyed or infracted the document’s basic structure.

Since this decision, the term “basic structure” and the theory underpinning its doctrinal creation have come to occupy a rather nebulous space in our constitutional jurisprudence. The verdict’s democratic legitimacy may not be beyond all doubt. But, over time, we have reached a consensus: that certain principles ingrained in the Constitution’s foundation are sacrosanct. It was one such inviolable value, the independence of the judiciary, derived as it was from a theory of separation of powers, that the petitioners argued was violated by the 99th Amendment.

The Union of India, in defending the Amendment, did not dispute the fundamental proposition that the maintenance of an independent judiciary is a part of the Constitution’s basic structure. Rather, it contended that the Amendment did not affect this admittedly vital feature of the Constitution. The primary question that the Supreme Court had to, therefore, decide was this: does the removal of the prerogative solely vested in the collegium in appointing judges to India’s higher judiciary violate the Constitution’s basic structure?

Answering this question would have entailed an analysis on the methods of maintaining an independent judiciary, and a consideration of whether, under our constitutional scheme, the only means to achieve an independent judiciary was by granting primacy to the CJI and his colleagues. Regrettably, none of the four majority opinions sufficiently engaged with these issues. Instead, the judgments are couched in diffuse, rhetorical language, which makes the ultimate verdict akin to a product of a political gambit.

Consider the following statement in Justice J.S. Khehar’s opinion: “We are satisfied, that in the matter of primacy, the judicial component of the NJAC, should be competent by itself, to ensure the appointment of a worthy nominee, as well.” He also said: “Under the substituted scheme, even if the Chief Justice of India and the two other senior most Judges of the Supreme Court [next to the Chief Justice of India], consider a nominee to be worthy for appointment to the higher judiciary, the concerned individual may still not be appointed, if any two members of the NJAC opine otherwise. This would be out-rightly obnoxious, to the primacy of the judicial component.”

Apart from displaying an almost condescending lack of trust in our citizenry, this statement also confuses the challenge against the Constitution (99th) Amendment with the challenge against the National Judicial Appointments Commission Act, 2014. The ability of two of the members of the NJAC to veto any appointment flows from the latter, which is an enactment in pursuance of the power vested in Parliament under Article 124-C. It defeats logic, therefore, to consider this proposed power of veto as a sufficient reason to render the constitutional amendment invalid.

Consultation vs. concurrence

That apart, Justice Khehar also fails to show us how the removal of judicial primacy in matter of judicial appointments impairs the Constitution’s basic structure. The learned judge relies on the decision in the Second Judges Case to tell us that the word “consultation” in Articles 124 and 217 means “concurrence.” However, the necessitation of “concurrence” as being integral to the maintaining of an independent judiciary, and therefore being an essential feature of the Constitution, isn’t a reasonable sequitur from this finding.

A proper reading of the Second Judges Case would show us that there is no explicit finding in Justice J.S. Verma’s majority judgment that a primacy of judicial opinion in making appointments to the higher judiciary is a part of the Constitution’s basic structure. It is possible that the Supreme Court believed at the time that granting such primacy would make for a more independent judiciary. However, the court did not find that this was the only way to ensure the judiciary’s autonomy. Justice Khehar’s reliance on the Second Judges Case to conclude that the removal of the collegium impairs judicial independence, violating the Constitution’s basic structure, is hence incorrect.

The other majority opinions are also similarly disordered, and have collectively created an altogether undesirable result. If anything, the 99th Amendment, quite contrary to infracting the Constitution’s basic structure, strengthened the checks and balances that were originally ingrained in the document. The passage of the Amendment ought to have been recognised as an important moment in the strengthening of our democratic foundations.

The Supreme Court’s power to exercise judicial review is unquestionable. But, in this case, the Court’s use of that power is bitterly disappointing.

( Suhrith Parthasarathy is an advocate in the Madras High Court.)

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Printable version | Jan 28, 2020 8:46:18 PM | https://www.thehindu.com/opinion/lead/njac-verdict-an-anticonstitutional-judgment/article7819287.ece

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