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A new beginning by the Supreme Court

Gopal Subramanium is a senior advocate at the Supreme Court. He has also served as the Solicitor General of India.

Gopal Subramanium is a senior advocate at the Supreme Court. He has also served as the Solicitor General of India.  

The judgment of the Supreme Court delivered on Friday striking down the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 by a majority of 4:1 is one of the most significant and everlasting contributions made by the Supreme Court restoring not only its credibility in the eyes of the legal profession but also in terms of its ability to openly introspect and notify suggestions for a better process of appointment of Judges.



Judges of the Supreme Court are appointed under Article 124 of the Constitution. It is important to bear in mind that any appointment even by the Executive (as it stood prior to introduction of the collegium system) was an appointment made by the President i.e. it was an appointment by ‘the Executive after consultation with the Chief Justice of the Supreme Court or the High Courts’. Similarly, an appointment of a Judge of the High Court was again to be undertaken by the President in consultation with the Chief Justice of India and the Governor of the respective State. Therefore, it is necessary to bear in mind that even according to the original frame of the Constitution, the Chief Justice of India was indeed an effective consultee and, the process which was followed was that the Chief Justice would recommend suitable names for appointment as Judges.



The first judgment in S.P. Gupta’s case (1981) was really in the context of ‘concurrence’ as being synonymous with the term ‘consultation’. It was believed thereafter that the Government could well rely upon ‘consultation’ as a formality, i.e. the Executive having the final say in the matter of appointment of Judges. This was sought to be corrected by a 9-Judge Bench in the Second Judges’ case (1993) which overruled the judgment in S.P. Gupta’s case. However, in order to ensure that the opinion of the Chief Justice of India carried overwhelming weight, the Supreme Court necessarily had to hold that the opinion of the Chief Justice of India was no longer the opinion of the individual Chief Justice but, in fact, was the opinion of the judiciary in a collegiate sense. This should necessarily weigh with the Executive; which could at best return the recommendation for reconsideration. But, thereafter, the opinion of the Chief Justice would carry weight, which meant that the recommendation of the collegium was final.



It must be pointed out that the Memorandum of Procedure dated 30th June 1999, in fact, contemplated timely appointment of Judges. However, it is a matter of regret that the said Memorandum was not followed in letter and spirit for which I am afraid the Judiciary is largely to blame.



Another criticism which emerged against the collegium system was that the collegium instead of promoting pure merit, seemed to make appointments which did not always reflect the splendour of the superior judiciary. Further, there was some doubt whether the theory of ‘legitimate expectation’ had itself robbed the High Courts of their independence because they would in turn look at possible ‘future prospects’. To the extent, the Second Judges’ case seemed to suggest that there could be a judicial career from the High Court to the Supreme Court, I have been of the consistent view that it was an incorrect interpretation. Rather, the Constitution contemplated a trilateral judiciary. The Constitution allows the Parliament, by law to designate courts subordinate to the High Court to be vested with some powers of the Supreme Court. This is to suggest that in order to be appointed as Judge, one must note only have characteristics of fearlessness, independence, ability, but must also have freedom from temptations of office and intellectual integrity coupled with the ability to review prejudices which are bound to form in the human mind from time to time.

The criticisms against the collegium system were broadly on account of -

(a) That some appointments were those of ‘undeserving’ candidates;

(b) That some eminent Judges were not appointed because they did not conform to the ‘profiling’ of those who were selecting them; and

(c) That little attention was paid to the appointment of Judges in the various High Courts.

Notwithstanding the enlargement of the collegium, these criticisms remained.



It must be noted that compromising the quality of judicial appointments has serious implications upon the expectations of citizens in their dealings with the State. In fact, it can alter the ecology of the human relationship between the citizen and the State as it did during the Emergency. However, it is also to the credit of the Chief Justice who superseded Justice Khanna that he took very little time in recommending those Judges who fearlessly upheld civil liberties thus strengthened the pillars of the Supreme Court. It was in view of such sociological factors only that Krishna Iyer J had observed in Sankalchand Himatlal Shah’s case that “Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government's pleasure”.



In my opinion, consultative criteria for appointments to the superior judiciary has not been adequately formulated. This could be because often expression of an idea differs from the idea itself. The need for an objective criterion is to enable focused application of mind. This requires a disassociated process by the Chief Justice and the members of the collegium while considering candidates for appointment to the superior judiciary. Naturally, such process should also involve a degree of scrutiny and investigation into the candidature.



In my view, the following 11-point matrix must be followed before a Judge of the Superior Court is appointed by the collegium, viz.:-



1. Integrity as a lawyer or as a Judge;

2. Ability to be fearless and to withstand pressures from all quarters including the Executive;

3. The ability to distance oneself from one’s own political or other ideology;

4. To act free from prejudice of any kind;

5. The ability to listen;

6. The ability to be able to have a sustained sense of contentment;

7. The ability to develop knowledge in new areas, engage with the legal profession and other stakeholders with humility, and to become students as well in the process of learning;

8. The ability to withdraw from friends, former clients, business interests and politicians;,

9. The ability to migrate from a life of authority to the life of a common man, to be able to frequently observe and imbibe the contemporary realities of life, to be able to think out of the box freely, to be familiar with modern technology, and to be able to empathetically read in different spheres;

10. The ability to cultivate personal interests and hobbies which will make the Judge a well-rounded person; and

11. The ability to draft well-reasoned judgments and write clearly.



I believe that ‘ability’ and ‘character’ are virtues that are continually cultivated. Indeed, every opportunity enables a person to develop or negate his character. The challenge to the Ninety-Ninth Amendment Act was one such test before the Supreme Court.



It must also be borne in mind that there are certain important aspects which are bound to undermine the independence of the Judiciary. The first is the policy of transfer of Judges and appointment of Chief Justices by transfer. In fact, the reasons for transfer of Judges are unsatisfactory. If the reasons do relate to suspected lack of integrity, the Judge must be asked to leave his office. Secondly, the appointment of Chief Justices by transfer, except in rare cases, has led to not only fractious behaviour between the incumbent Chief Justices, fellow Judges, and the Bar, but also the inability of the incoming Chief Justice to understand the ethos and culture of a High Court. Thus, I am of the firm opinion that if Judges have to be appointed on the basis of integrity, there is no reason why they should not head the Court as long as they undertake suitable, interventional measures to cleanse themselves of any possible prejudices which accrue on account of intimate knowledge of the place and the members of the Bar.



The second reason due to which the independence of the judiciary has been diminished is the seeking of financial grants and funds from the Government. In fact, this has been absolutely deleterious. In my view, financial autonomy must be granted to the judiciary and the judiciary would necessarily subject itself to more than rigorous inbuilt scrutiny particularly in association with the Comptroller and Auditor General of India and place its expenditures and spending on the floor of the House. In fact, the Attorney General in Canada presents the budget on behalf of the Judiciary and there is no reason why the Supreme Court must not authorise an eminent senior lawyer or the Attorney General on his behalf to address Parliament and present its outlay. The processing of the outlay by the Ministries and in particular the Department of Expenditure has itself led to bureaucratic delays, delay in supply of computers and spares, and delay in provision and rectification of infrastructural support to the judiciary – together contributing to delays in adjudication. The monumental exercise undertaken by the former Chief Justice S.H. Kapadia on every Monday afternoon to see the conditions of the District judiciary was not only praiseworthy but also disclosed the very poor attention which was paid to the conditions of those who are members of the trial judiciary. In fact, it is the members of the trial judiciary and the trial lawyers who need the best support, attention and infrastructure. If the administration of justice begins well in the courts of first instance, the quality of justice would automatically be incrementally positive in the Superior Courts.



The third reason due to which the independence of the judiciary has been diminished is the setting up of a large number of Tribunals under the “pretext of specialisation” denuding the Courts of their jurisdiction. In fact, this also insults the members of the Bar, who in order to perform their duty, are compelled to appear before persons who are not qualified and competent to either to understand law and to pronounce on matters of law. The view expressed by the Supreme Court in R. Gandhi’s case upholding ‘tribunalisation’ with caveats also needs to be overruled. In my view, Tribunals must be abolished and the powers must be restored to courts of competent jurisdiction. I have no doubt that a competent judge would spare no time in learning intricacies of sophisticated disciplines.



Lastly, post retirement favours to the Judges who look for opportunities to be associated in some official capacity is an anathema and must be completely forbidden. It is far better for the judiciary to have its own housing schemes, proper life time pension and annuities, so that Judges lead respectable life until the very end. In fact, the sad plight in which many retired Judges have had to fight for reimbursement of their medical expenditure would leave one to wonder whether a life of austerity and integrity must lead them to this end. It is submitted that these are matters where the judiciary must not compromise in any way.



But to return to the point, A.C. Gupta, J. in the S.P. Gupta’s case rightly said that, “….. Judges had to be protected against interference, direct or indirect…..” and that, “ …..the constitutional provisions should not be construed in a manner that would tend to undermine the concept of ‘the independence of the judiciary’…..”. But it is also interesting to note that Gupta, J. also significantly conceded that even if there was a difference of opinion between the Chief Justice of India and the Chief Justice of a High Court, the opinion of the Chief Justice of India should be accepted by the President unless such opinion suffered from any obvious infirmity.



One of the important points which the NJAC judgment makes is its deep understanding of the issue of ‘independence of judiciary’. The Ninety-Ninth Amendment Act not only did away with the collegium or the opinion of the Chief Justice having overwhelming weight, but it also made the Head of the Executive who also was the Head of the Legislative party as well as the Leader of the Opposition as two important persons in the selection of ‘selectors’ of Judges. Indeed, such an arrangement would mean a convergence of the Executive, the Legislature and the Judiciary which is completely forbidden under the Constitution because the Constitution does imply and can survive only if there is a separation of powers. In my view, even the office of the Attorney General under Article 78(1) is meant to be separate from the Executive because he is akin to a Judge of the Supreme Court. While the administration of justice draws its validity from the Constitution, its credibility must rest in the faith of the people and the legal profession.



A question has arisen whether there is sufficient accountability of the judiciary. It must be borne in mind that accountability of a Judge is subjective but can only be made objective by new processes of introspection, discussion and interaction. The NJAC judgment for the first time opens this pathway and allows fresh winds of change to blow into the matters of judicial appointments. Undoubtedly, the ‘independence of judiciary’ is a central value on which the Constitution is based.



It is clear from the submissions recorded in the NJAC judgment that the Union of India took a position completely inconsistent with the Constitution. It contended that the determination rendered by the 9-Judge Bench in Second Judges’ case was not sustainable. Meaning thereby, it deserved to be overruled. Yet, the Union of India contended that the Second Judges’ case was not relevant because the Basic Structure of the Constitution would still not be emasculated by the Ninety-Ninth Amendment Act. In my view, this argument has been rightly rejected. The law laid down by the Supreme Court necessarily forms a part of the interpretation of the various provisions of the Constitution. Therefore, there cannot be any doubt that the ‘Basic Structure’ being an interpretation of the Constitution is an integral part of the Constitution itself. The arguments by the Learned Attorney General which proceeded upon the lines of S.P. Gupta’s case, i.e. consultation was distinct from concurrence and that there was a plain tinkering with express words of the Constitution, were no more than a repetition of the arguments which had once seen the light of the day and stood rejected. However, some of the contentions of the Union were indeed objectionable. One of them was a reference to Article 125 that salary payable to the Judges of the Supreme Court had to be determined by the Parliament by law. Thus, the submission was that the Parliament was given an express role to determine even the salary of Judges which was a condition of service of the Supreme Court. Further, the appointment of the Judges to discharge the functions of the Chief Justice of India under Article 126 and also the special circumstances in which adjudication could be continued under Article 127 were pressed into service to show a certain overarching role of the President of India in the administration of justice. These indeed are exceptional provisions, and they do not in any way suggest that judiciary was indeed meant to be subjugated in its independence to the other organs of the State. While the theory of harmony between the three organs of the State is desirable, but yet as Lord Hope of the UK Supreme Court correctly pointed out, Judges are hardly meant to please either the Executive or the Legislature but are meant to deal with issues relating to the rights of the citizens and determine whether the Executive acts are within the boundaries of the law and consistent with human rights. The important contribution of the NJAC judgment is that it follows carefully the pathway of Chief Justice Sikri in the Kesavananda Bharati’s case.



It may also be noted that the reference to Gobind Ballabh Pant’s answer on the floor of the House that the recommendation of the Chief Justice of Supreme Court was honoured is indeed telling. The NJAC judgment particularly the majority, has taken a view based upon a consistent understanding that in matters where the power of appointment was exclusively vested with the President, the concept of aid and advice would be relevant but certainly not where the provisions for consultation in the matter of higher judiciary contained different words. The structure of Justice Khehar’s judgment is impressive. First part of his opinion deals with the question of recusal, the second deals with the question of refusal to reconsider the Second Judges’ case and the Third Judges’ case and is followed by an analysis of the validity of the Ninety-Ninth Amendment Act. The structure shows a very carefully thought out view. Khehar, J. noted that, “ the question about the maintenance of judicial standards…..” and that “ the judicial responsibility in the matter of appointment of Judges” according to the Learned Counsel being the most important trusteeship could not be permitted to be shared, with either the Executive or the Legislature (per Dr. Rajiv Dhavan, Senior Advocate). Judiciary is the bastion to preserve Constitutionalism. After all, powers of the Legislature which are sovereign within their own sphere are still subject to the limitations of the Constitution. In the discharge of its obligations, the Executive has to be respectful to the Constitution.



The argument of having a Judicial Appointments Commission such as in the United Kingdom, does appear to be a close example. However, it must be pointed out that there is a considerable distinction between the nature of the legal profession, the number of Judges and the resources which are available for the purpose of undertaking such selection in India. Moreover, in India the Constitution is supreme. One of the important aspects was about the presence of the Law Minister in the NJAC and the submission was that his presence would not violate the Basic Structure of the Constitution. In fact, the Government’s argument was that – (a) the NJAC would introduce transparency in the process of selection and appointment of Judges; (b) the appointments would be not secretive; (c) that civil society could have a say; (d) there could be a diversification of the selection process; and (e) there would be a degree of assurance of selection of the best candidates.



Even though the above arguments seem attractive, it must be stated that the nature of appointments to the Superior Judiciary cannot be simply subjected to a multifarious combination of the above factors because the consequence would be that the consideration of candidature of an appointee or a likely appointee itself could be imperilled.



The majority with which the Lok Sabha and the Rajya Sabha passed the said amendment and the subsequent ratification of the Bill by the State Assemblies, were as also pressed into service as an argument. Thus the contention of the Union that the unanimous will of the people was reflected in the Ninety-Ninth Amendment Act must be deemed to be expressive of the desire of the nation.



In my view, this indeed is the true test. It is not the ‘desire of the people’, rather the compatibility of a law which seeks to amend the Constitution with the Basic Structure with which the Supreme Court was concerned. It must also be mentioned that the strength and enforceability of a Constitutional amendment must be only with reference to the Constitution and to that extent Khehar, J. who rejected the argument of majoritarianism as a means of testing the validity of the Ninety-Ninth Amendment Act has rendered a great service in upholding the independence of the judiciary and thereby, that of the Rule of Law.



Article 124A which was the cornerstone of the Ninety-Ninth Amendment Act was clearly a direct attempt to dismantle the judiciary and has been rightly repelled. I may also add that the comparative law research undertaken by Khehar, J. in his judgment and in particular his reference to the standards of judicial independence in the European Court of Human Rights is significant. There is no doubt that ‘ objective and transparent criteria’ for selection and appointment needs to be devised and implemented. This is necessary because if an appointee does not have requisite skills and abilities to discharge his or her function, it would result in direct dilution of judicial independence. It is also interesting to note that the independent opinions expressed in various international conferences and particularly the Bangalore Principles of Judicial Conduct (which in turn have been incorporated and recognised even in England) are relevant to determine who could secure such appointees. Obviously, it is a very serious duty cast upon the Courts, particularly, the Chief Justice and his companion Judges. Similarly, the Chief Justice of a High Court and his companion Judges have a corresponding duty. But in my view, the journey has only begun.



It is important to note that Khehar, J. admits the collegium system having been the subject of criticism and also records that independence of the judiciary is not physical but metaphysical. In fact, the very process of having an independent Judicial Appointments Commission was to take it away from the Executive in the form of Lord Chancellor. Nevertheless, I regard that the Supreme Court would be benefited by a very careful and serious dialogue with members of the Bar, the leaders of the legal profession to determine what possible changes can be brought about for the purpose of ensuring that even after the Ninety-Ninth Amendment Act is struck down, the true aspirations of the Supreme Court reflected in the earlier judgments and in particular in many of the expressions of Venkatachaliah, CJ could be realised. Indeed, one must not forget that the lifeblood of an independent judiciary has been the contribution made by many Judges who have given their lives quietly and stoically in service of the cause of justice. The portraits of Justices Harilal J. Kania, Bijan Kumar Mukherjea, T.L. Venkatarama Ayyar and H.R. Khanna are only meant to signify that the four portraits which stood for four separate facets of judicial excellence must guide the Supreme Court. But indeed it must be said to the great credit of the Supreme Court that the manner in which they have welcomed that the true faith and allegiance to the Constitution will require multiple skills reflects maturity and a progressive view. Without such multiple skills discharge of duties as contemplated under the Bangalore Principles of Judicial Conduct, 2002 ( per Kurian Joseph, J.) would remain a challenge. The nature of the judicial function does involve the performance of difficult and at times unpleasant task (per Kurian Joseph, J.). In the succinct opinion of Goel, J., who effectively summarised the procedure for appointment and rightly framed the question whether the primacy of judiciary and the absence of Executive interference in the appointment of Judges is a part of the Basic Structure. In my view, Goel, J.’s opinion correctly answers the question with reference to an understanding of the majority opinion in the Kesavananda Bharati’s case. Similarly, Lokur, J. who in addition to carefully analysing the previous judgments has also spoken about the need to think differently as the advances in society have left the door ajar.



The final order pronounced by the Supreme Court clearly says that the matter will be listed on 3rd November, 2015 “ to consider introduction of appropriate measures, if any, for an improved working of the collegium system…..”. This is a new beginning by the Supreme Court. It is to the credit of the five Judges that they have stood up for the Basic Structure and they are willing to remedy the possible ‘errors’ with an open mind, and avoid the possibility of efforts in future. I have no doubt that they would devise pre-eminently suitable objective criteria for selection and appointment of Judges; even if it is not the 11-point matrix suggested above.



Lastly, I must add that these norms must be applicable for all judicial appointments be that to the Supreme Court, the High Court or the Trial Court. The Constitution envisages judges of comparable and if not equal merit at all the levels of the judiciary. The Supreme Court owes this to itself in the Constitution. The nation must be grateful.

(Gopal Subramanium is a senior advocate at the Supreme Court. He has also served as the Solicitor General of India)

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Printable version | Sep 19, 2020 6:19:21 AM | https://www.thehindu.com/opinion/op-ed/gopal-subramanium-writes-on-supreme-court-bench-order-on-njac/article10162156.ece

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