On October 16, 2015, a 5-judge Constitution bench of the Supreme Court [SC] of India by majority vote of 4 has quashed the 99th constitution amendment and follow-on enactment setting up the National Judicial Appointment Commission [NJAC] for appointment of judges of SC and High Courts [HCs]. With this, the SC has also resurrected the erstwhile “Collegium” system which NJAC had replaced. It has invited suggestions on how to improve upon the Collegium which will be taken up in its next hearing on November 3.
The setting up of NJAC was the outcome of a marathon exercise – that started with the recommendation of Justice Venkatachaliah Committee in 2002 [set up by NDA-I] that appointment of judges be made by a National Judicial Commission [NJC], approval by parliament [August, 2014], ratification by 20 state assemblies, assent of the President of India [December, 2014] and notification of NJAC Act on April 13, 2015. By a stroke of the pen, 4 wise men of the apex court have decimated it.
Delivering this volcanic verdict, the judges argued that NJAC was an onslaught on independence of the judiciary and therefore, unconstitutional. Their primary discomfiture was with inclusion of law minister in a committee of 6 members besides 2 eminent persons [the other 3 members are Chief Justice of India [CJI] and 2 senior-most judges of SC]. The law ministry being made secretariat of the NJAC was also a sore point with the judges.
How could the law minister who represents the government – a litigant in most of the court cases – be given a say in selection of judges who have to decide on cases involving it and its agencies? This will lead to clash of interest and make judges subservient to the government on whose actions they are required to give decisions, the bench wondered. The argument is fallacious.
The law minister is one among 6 members of the commission and considering that the decision in regard to appointment of judges has to be taken by majority, it defies logic as to how he alone could manage to install a person of government’s choice. He can’t also veto selection of a candidate as under the Act, only 2 members can do so. Moreover, the proceedings of NJAC are transparent and open to public scrutiny which will ensure that actions of all members – including the law minister – are above board and free from any biases or prejudices.
The judges have objected to inclusion of eminent persons saying that they do not have knowledge of law. This is a specious argument. As leading public figures, eminent persons bring a totally different perspective and are not expected to have specialized legal expertise. That aspect any way is taken care by 3 judges [CJI plus 2 senior-most judges of SC] in the committee which functions as an integral entity taking decisions collectively.
Yet another doubt that they would act as proxies for executive is baseless as in a committee of 3 to select them, two viz., leader of opposition and CJI are non-executive members, the third being the prime minister [PM]. PM being the only member representing the executive, there is absolutely no possibility of the government handing down an eminent person of its choice.
Under the Constitution [Article 124 (2) and 217], the President of India appoints judges of SC in consultation with the CJI whereas for appointing judges of HCs, he is also required to consult Chief Justice of concerned HC and state governor. In short, appointment of judges is entirely the prerogative of the President. And since, the President goes by the recommendations of the union government/executive, the latter has a say in the subject matter.
Therefore, the Constitution envisaged a clear role for the executive in the appointment of judges. It emphasized on executive and judiciary working together to arrive at decisions. Indeed, until 1981 appointments were being made in a manner consistent with the basic structure of the Constitution. Thus, CJI would initiate appointment of a judge and then considered and approved by the President.
In 1982, this system received a big blow when a seven-judge bench gave a free hand to the executive in appointment of judges arguing that “consultation” of CJI did not amount to “concurrence” and the Constitution did not provide for CJI’s primacy. By dispensing with consultation altogether, that decision of apex court tampered with the basic structure of the Constitution.
In 1993, in Advocates-on-Record Association case, a 9-judge bench by a majority of 7 ruled that CJI will appoint judges. The judgement laid down the process for CJI to recommend names with consultation of two senior-most SC judges. In 1998, on presidential reference, a 9-judge bench reaffirmed the 1993 judgement and enlarged the SC panel from 2 to 4. This became the Collegium system [or a club of 5 as it came to be commonly known].
The decisions of 1982 as well as 1993/1998 were flawed and blatantly violated the basic tenets of the Constitution. In total contravention of the intent that both the executive and the judiciary should jointly arrive at a decision, the 1982 verdict gave absolute powers to the executive in the appointment of judges to the exclusion of judiciary. At another extreme, the 1993/1998 judgement gave absolute powers to the judiciary knocking out the executive.
Modi – government after thorough research and taking in to account recommendations of high level committees has strived to undo that damage by restoring balance between the executive and judiciary. In the NJAC, it has also brought eminent persons to directly represent the public. Above all, it has made the appointment process transparent and open to public scrutiny, unlike the Collegium whose decisions are shrouded in secrecy and not even accessible to judges forget the general public.
Yet, it is ironical that now 5-judge bench by a majority of 4 has overthrown NJAC and resurrected the much ‘abused’ Collegium system [as pointed out by none other than the lone dissenting judge Justice J Chelameswar]. By doing so, the 4 judges have vented out their narrow mindset that judiciary is the only competent authority to decide appointment of judges; that all other institutions of parliamentary democracy viz., the executive, prime minister, council of ministers and the legislature are redundant.
This judgement is an onslaught on the conscience of the Constitution fourth time [previous 3 attempts were made in 1982, 1993, 1998]. Pertinently, the SC concedes that there are deficiencies in Collegium system and wants to improve it. However, what it fails to realize is that the system suffers from a structural flaw. It makes the justice delivery dispensation in India vulnerable to what a group of 5 judges think is in the best interest of 1250 million people.
How will Modi – government deal with the crisis situation [triggered by this volcanic verdict] at a time when hundreds of posts are lying vacant in HCs and SC in the face of demand on the judicial system increasing leaps and bounds? One can only wait and see how events unfold!