With the collegium system coming to an end, the National Judicial Appointments Commission Act has taken over. This will herald new ties between the executive and the judiciary, where the position of the Chief Justice of India will be merely symbolic
By Vinay Rai
THe center’s notification of the National Judicial Appointments Commission (NJAC) Act, 2014, and the Constitution (99th) Amendment Act, 2014, on April 13, are defining moments in the history of executive-judiciary relationship in India. In one stroke, the notification puts an end to the self-selection of judges in higher courts. Although both Acts were to come into force on such date as the center would notify them in the official gazette, its choice of April 13 was a masterstroke.
The Supreme Court’s (SC) five-judge constitution bench, headed by Justice Anil R Dave, was scheduled to begin hearing of 10 petitions challenging the constitutionality of these two Acts on April 15. Their passage as bills in the two houses of parliament and ratification by the required number of state legislatures, before getting the president’s assent, was a smooth affair.
CLEAR CONFLICT
Justice Dave is an ex-officio member of the NJAC by virtue of being the second senior-most judge of the SC after Chief Justice HL Dattu. Therefore, his membership of the constitution bench was bound to invite a fresh challenge—that he suffered from a clear conflict of interest and as a consequence, disqualification of his membership of either the NJAC or the Constitution bench. This was the point made succinctly and forcefully by the doyen of constitutional law, Fali S Nariman, who represents the lead petitioner, Supreme Court Advocates-on-Record Association, before the bench.
(L-R) Chief Justice of India HL Dattu; Justice Anil R Dave
Although Justice J Chelameswar, another judge on the bench, suggested that conflict of interest could not arise because Justice Dave’s interest—whether in the NJAC or on the bench—would be to ensure the appointment of competent judges to the higher judiciary, Justice Dave understood the justification for recusal from the bench, and withdrew. This led to the constitution of another bench headed by Justice JS Khehar (fourth in order of seniority). And as the other four members remain the same, hearing of the case began from April 21 when there was a fresh challenge from Nariman to Justice Khehar’s membership of the bench on the ground of conflict of interest. The bench dismissed the plea for recusal of Justice Khehar.
Even as the Justice Khehar-led bench showed its determination to expeditiously hear the case from April 27, two issues loomed large before it. One was whether the center would agree to await the bench’s ruling before letting NJAC go ahead with fresh appointments and transfers, as in case the NJAC was declared unconstitutional, it would become untenable. The government, fortunately, agreed to defer fresh appointments and transfers by NJAC till the verdict was delivered in the case.
The second was what would happen to the tenure of the additional judges of the high court, which might end during the course of the hearing of the case, and who cannot continue without being confirmed either by the collegium or the NJAC. The bench suggested that in such cases, the tenure of such additional judges of high courts, who were on probation for two years, could continue for three more months, and asked the government to come out with details by May 11.
But there was a third issue, which it appeared, could not be resolved: what about the likely embarrassment to the two eminent persons, likely to be appointed to the NJAC, but who might lose their positions if the court were to declare it unconstitutional? If the government deferred the appointment of these eminent persons to the panel, it cannot start functioning, and with the court’s verdict hanging like a Damocles sword, would any “expert” agree to join the NJAC?
COLLEGIUM SYSTEM
The collegium to choose SC judges comprised of the CJI as chairman and four senior-most judges of the court. The collegium to choose high court judges, on the other hand, comprised of the CJI and two senior-most judges of the Supreme Court. This collegium was expected to consider the opinion of the concerned chief justice of the high court, the views of the other high court judges who might have been consulted, and the views of SC judges who were conversant with the affairs of that high court. Although the collegium accorded primacy to the CJI, he did not have a veto power over other members. Thus, the executive was bound by the recommendations of the collegium, only if they were backed by consensus within the collegium itself.
In practice, however, the differences within the collegium were never publicized. The opaque sorting out of differences within it gave rise to suspicions that members of the collegium often adopted the “give and take” approach, to ensure the elevation of their candidates to the courts, even if they were not in complete agreement with the choice of
their colleagues.
All this is set to change under the NJAC, which is a six-member body. Apart from the CJI and two senior-most judges of the Supreme Court, NJAC will include the Union law minister and two eminent persons, who will be selected by a panel of the CJI, the Prime Minister, and the leader of the opposition, or the leader of the single largest party in the Lok Sabha. One of the eminent persons will be from the SCs and STs, OBC, minorities
or women.
For appointment of judges to the high courts, the NJAC shall consider the views of the chief justices of the high courts, who would in turn, seek the views of two senior-most judges of the concerned high court, apart from any other judges and members of the bar. The NJAC also has to seek the views of the governor and CMs of the respective states before making recommendations for appointment of high court judges. Significantly, if two members of the NJAC oppose a proposed appointee, the appointment cannot be made. This has given rise to concerns that the law minister and an eminent person, chosen by a selection panel in which the political class is preponderant, can stop an appointment, even if endorsed by the members of the judiciary within the NJAC.
HOW INDEPENDENT?
The question asked in the legal circles is whether the eminent persons chosen as members of the NJAC will be truly independent to deny the political class any advantage in the choice of judges. This concern is the thrust of many of the petitions before the SC.
The court can declare the two Acts unconstitutional, if it holds that they violate the basic structure of the Indian constitution because of this compromise.
The hearing of challenges to the NJAC by the SC is the “Fourth Judges Case”. The First Judges Case (SP Gupta vs President of India, (1981) Supp. 1 SCC 87) arose following the fears of a committed judiciary in the Indira Gandhi years. In this case, the seven-judges bench of the court upheld the executive’s power to appoint judges, but added that consultation with the CJI was mandatory to certify the antecedents of the proposed appointe to the SC, and in case of high court judges, also with the chief justice of the respective high court, to certify his or her competence and character.
However, the majority judges in this case gave the executive the final say in making appointments to the higher judiciary. This upset the earlier balance of power between the executive and the judiciary. The court came under criticism for compromising its own independence.
Articles 124 (in the case of appointments to the SC), Article 217 (in the case of appointments to high courts) and Article 222 (in the case of transfer of a judge from one high court to another) of the constitution require the president to consult the CJI and other judges before making the appointments. The expression “consultation” appears to have been deliberately used by the constitution-makers to ensure that neither executive nor judiciary wields absolute power.
FULL OF AMBIGUITIES
The SC, following petitions seeking to fill vacancies in the higher judiciary, decided to reconsider its judgment in the First Judges Case by constituting a nine-judge bench in 1993. The majority in this Second Judges Case, overruled the earlier decision in the First Judges Case, and transferred “primacy” from the executive to the judiciary. Thus, the CJI was to decide after consulting two senior-most judges of the SC while recommending appointees to the SC and two senior-most judges of the high court while deciding appointment of judges to the high court.
If the CJI’s decision, formed in this manner, conflicted with that of the executive, then the former’s view would prevail. On transfer of high court judges, the CJI’s view would again prevail, but he was to consult other judges whose opinion may be relevant.
The word “consultation” was interpreted to mean “concurrence” of the CJI and the collegium. The collegium system was thus born in 1994 with all its ambiguities and aberrations, which led to its eventful demise on April 13.
The Third Judges Case arose out of a presidential reference under Article 143 of the constitution in 1997. A nine-judge bench reiterated the previous decision in the Second Judges Case, but enlarged the size of the collegium, by requiring the CJI to consult four senior-most judges of SC.
While the collegium system, to some extent, facilitated the role of plurality of functionaries in the appointment process, it suffered from the vice of opaqueness, and thus invited criticism of following a clandestine process—the very criticism leveled against
the executive when it had primacy in the appointments.
The collegium system could have weathered the storm over its functioning if only the office of the CJI had released some criteria for appointments, and laid down some procedures and mechanisms for investigating allegations of malpractices in appointments. The SC, for instance, refused to release the minutes of the collegium meeting which recommended the elevation of Justice PD Dinakaran, then chief justice of the Karnataka High Court, to the SC. Following allegations of corruption, his elevation was put on hold, but he was transferred as the Chief Justice of the Sikkim High Court. He subsequently resigned, frustrating the proceedings for his removal in parliament.
THAT’S UNFAIR
The SC made the process of functioning of the collegium out of bounds to RTI applicants. It also stayed the Central Information Commission’s directive to it to disclose information about the collegium, and referred it to a constitution bench, where it has been pending since 2009.
The NJAC aims to broadbase the process of selection of judges by including in it members of the judiciary, the executive, eminent persons, and make it transparent. The inclusion of eminent persons was not envisaged by the constitution-makers for appointment of judges to the higher judiciary.
Therefore, if these two eminent persons exercise their veto over a proposed appointee, who otherwise, has the backing of other four members of NJAC, it may go against the letter and spirit of the original constitutional provisions. How the SC’s constitution bench considers this change in the consultation process, will be watched with interest.
The NJAC Act does not say anything on how it proposes to ensure merit, integrity, ability of the appointees and transparency in the selection process, leaving everything to rules and regulations made by NJAC.
The answer to much of the criticism leveled against the collegium and the NJAC may well lie in these rules and regulations.