The observation by the Constitution Bench of the Supreme Court, which is presently hearing the petition challenging the National Judicial Appointments Commission Act and the Constitution Amendment Act, that the collegium system was good but its implementation was bad is the subject of much speculation in government circles. There is apprehension that the court may even strike down the two enactments on the ground that judicial primacy in the appointment of judges has been done away with.
However, from a closer reading of the judgment in the Supreme Court Advocates on Record Association versus Union of India (or >Second Judges Case ) it would appear that it may not be easy for the Constitution Bench to strike down these two laws on the ground that they destroy judicial independence and thus violate the basic structure of the Constitution.
The judgment lays down the following propositions: (a) Judicial independence extends also to the stage of appointment of judges. It is not enough to have security of tenure, salary, pension, and so on ; (b) Selection of judges is a participatory, consultative, constitutional function performed by high constitutional functionaries whose objective is to pick the best persons for the higher levels of judiciary; (c) In this exercise, no one is higher or lower than the other; (d) normally a judge should be selected through a process of consensus. In case that is not possible, more weightage should be given to the opinion of the Chief Justice because he or she is the expert who can judge the competence of the candidate better. This is necessary to avoid a stalemate and also to avoid an incompetent person with political backing getting through.
Participatory exercise In the narrative part of the judgment, the court has adopted a larger perspective on the issue. Note the following observation of the court: “The emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Each of them has some inherent limitation and it is only collectively that they constitute the selector.”
It further says, “Appointment of judges is a participatory constitutional function. It is perhaps inappropriate to refer to any ‘power’ or ‘right’ to appoint judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.”
Here, the court emphasises the point that selection of judges is a participatory exercise to be performed by the highest constitutional functionaries and consultation is the essence of this process. The question of the primacy of opinion will arise only when all other efforts fail to select an agreed candidate. “The joint venture of all the constitutional functionaries will help to transcend the concept of primacy between them,” said the court.
Somehow, this conciliatory approach of the court is missing towards the end of the judgment, where it firmly says that appointment shall be made of only those proposed by the Chief Justice. The court laid down an elaborate procedure on the selection and appointment of judges and other related matters, which, in fact was the province of the legislature.
Thus, the primacy of the executive was replaced by the primacy of the Chief Justice. This was done after making the following observations: “It is obvious that the provision for consultation with the Chief Justice was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate and his suitability for appointment as a superior judge.… At the same time, the phraseology used indicated that giving absolute discretion or the power to veto to the Chief Justice of India as an individual in the matter of appointment was not considered desirable (by the framers of the Constitution) so there should remain some power with the executive to be exercised as a check whenever necessary.”
The Constitution Amendment Act and the NJAC Act can be struck down only on the ground that these enactments violate the basic structure, namely judicial independence.
The >First Judges Case (or the S.P. Gupta case) judgment was overruled because the court felt that primacy of the executive in the appointment of judges is destructive of judicial independence. In fact, the Constitution Amendment Act does not confer primacy on the executive, which is represented by only one member on the commission. So it cannot be attacked on the ground that it gives primacy to the executive.
Does it take away the primacy of the Chief Justice? Well, the judiciary is represented by the Chief Justice and two senior-most judges who have a powerful voice in this body. Their knowledge and expertise, their formidable status, and so on, are enough to influence the other members and bring them around to their view. If the judges do not approve of a certain name, they can veto it. Once a proposal is vetoed, it cannot be revived.
While it is true that the judges require the support of other members of the commission to get a name through, that by itself is not going to cause any serious erosion of the independence of the judiciary. After all, the learned judges who wrote the judgment made the following significant statement: “The joint venture of all the constitutional functionaries will help to transcend the concept of primacy between them.”
The judiciary could share their knowledge and expertise with other members and elevate the exercise of collective consultation to a higher level. The fact that no one individual or group has primacy in the new scheme accords with the sentiments expressed by the court in the Second Judges Case and the overall perspective adopted by the judges in dealing with the issue.
In fact, the integrated participatory consultative process has been raised to an almost philosophical level by the learned judges. The new enactments provide for a qualitatively better and more broad-based consultation than the consultation among a few judges as per the collegium system.
Constitutional safeguards The Constitution safeguards judicial independence. Apart from the specific provisions that safeguard that independence, the new enactments extend the concept of independence to the stage of appointment also by providing for the largest number of judges compared to other representatives on the commission and a veto power for them.
Judicial independence is not an end in itself. It is also a means to realise a higher objective, namely to find competent, independent-minded judges for India’s higher judiciary. It is not the means to select judges arbitrarily and without any sense of accountability using the power of primacy. The true merit of a judge will become known only through the process of wider consultation. The two enactments provide for such consultation.
The collegium system lacked transparency and was therefore susceptible to abuse. The present Constitution Bench admitted that there was bad implementation of the collegium system and that is the severest indictment of the system by the judges themselves. The NJAC is by all accounts a superior alternative, and there is no ground to strike down the laws.
(P.D.T Achary is former secretary general of the Lok Sabha.)