Several hurdles have prevented the commission from taking off, including recusal by Justice JS Khehar, and CJI HL Dattu saying he can’t participate in it. At the root of the problem is independence of the judiciary
By V Seshadri
Whatever be the outcome of the Fourth Judges Case, the proceedings before the five-judge constitution bench led by Justice JS Khehar in the Supreme Court may well be remembered for high drama, suspense about the progress of the case itself and sharp cleavage among the major stakeholders. This is besides the serious hurdles which the bench had to navigate before it could even begin its work. The proceedings began on April 27.
The grievance of conflict of interest against Justice Khehar, raised by some petitioners, was the first hurdle to be resolved by the bench, which showed its determination to go ahead with the hearing of the case, overruling objections which appeared to lack substance. After hearing senior counsel argue for and against Justice Khehar’s recusal, the bench put the issue to rest, promising to disclose its reasons later.
Just when it seemed that matters had settled down, Attorney-General (AG) Mukul Rohatgi presented another serious constitutional crisis which defied easy resolution: Chief Justice of India (CJI) HL Dattu’s letter to Prime Minister Narendra Modi expressing his inability to participate in the proceedings of the National Judicial Appointments Commission (NJAC) till the constitution bench upheld the validity of the law setting it up. Again, the bench heard arguments from senior counsel on the correctness of Justice Dattu’s refusal to participate in NJAC’s meetings to select two eminent persons, making it a non-starter despite its formal notification, and the bench’s refusal to stay its formation. Some of the counsel told the bench that the CJI’s refusal was unconstitutional, and the only remedy is a direction from the bench to the CJI to participate in the NJAC.
As in the case of the recusal issue, the bench decided to downplay the CJI’srefusal, and deal with its consequences, as and when they arise. The bench wanted NJAC’s early formation in order to extend the tenures of additional judges in various high courts during the hearing of the case; with the NJAC’s non-formation, the bench would be faced with the dilemma of extending their tenures, as both the Supreme Court’s collegium and the NJAC are currently non-existent.
The bench appeared undeterred by this legal vacuum in the mechanism to appoint judges, caused wholly by the refusal of the CJI. The bench’s reluctance to decide the matter either way was not only because of its respect for the office of the CJI, but to avoid any distraction which it might have caused to its main task.
The CJI’s refusal to participate in NJAC was surprising because of its timing, as he could have written his letter to the PM much earlier, and taken the constitution bench into confidence. But the proceedings before this bench left no one in doubt that the NJAC would have serious birth pangs because of the sword of Damocles hanging over it. If the bench were to strike down the NJAC law, it would cause acute embarrassment not only to the two eminent persons chosen to join it, but also to the CJI who would have played a role in selecting them. For members of the political class, who are ex-officio members of the NJAC, it would have been business as usual.
As the bench began hearing the substantive arguments of the petitioners, interjected by the AG’s comments, the NJAC’s non-formation, without a stay from the bench, became an academic issue.
Dattu’s refusal to participate in NJAC was surprising because of its timing, as he could have written his letter to Modi much earlier, and taken the constitution bench into confidence.
But the bench was soon reminded of another dilemma: Can the five-judge bench uphold the constitutionality of the NJAC without setting aside the judgment in the Second Judges Case (1993), and the advice tendered in the Third Judges Case (1998), both of which were decided by nine judges? As the five-judge bench cannot set aside the judgment or opinion delivered by a bench of nine judges, it cannot decide the NJAC matter fairly and objectively, as it would be bound by the previous decisions, and the result could only be declaring NJAC unconstitutional.
It appeared as though the center, having accepted defeat in the adversarial litigation with the petitioners, wanted to save face by a belated reference to an 11-judge bench.
The dilemma acquired substance as the petitioners’ counsel, one after the other, said that based on the Second and Third Judges cases, the Supreme Court had held that a preponderant role for the judiciary in the appointment process marked a key ingredient of its independence. This is part of the basic structure of the constitution, and therefore, out of bounds for parliament’s amendment process, as per the Supreme Court’s judgment in the Keshavananda Bharati case, decided by 13 judges in 1973. Insofar as the NJAC Act and the 99th Constitution Amendment diluted the preponderant role for the judiciary, by giving veto powers to any two of the six members (three of whom are non-judges), they argued that they were liable to be struck down.
It is, therefore, not surprising that the demand for referring the case to an
11-judge bench was vociferously made by the AG, even as the bench appeared determined to go ahead with the hearing as if the Second and Third Judges cases were not relevant to decide the validity of NJAC Act and the 99th Constitution Amendment. Justice Khehar repeatedly told the petitioners and the AG to confine themselves to the validity of the NJAC, independently of the Second and Third Judges cases. He said this because he observed that the argument that a preponderant role for the judiciary in the appointment process is essential to sustain its independence and therefore, the basic structure of the constitution had not been conclusively settled in the Second and Third Judges cases. Therefore, he suggested that it is not necessary to set aside the judgments in the Second and Third Judges cases, in order to decide the validity of NJAC law (as this was a new law and should be examined independently). If both the parties supported this view, then the bench could avoid referring the matter to an 11-judge bench, it seemed.
The petitioners implicitly accepted Jus-tice Khehar’s suggestion, but the AG did not, and insisted on an early resolution of his demand, to avoid waste of time. Well into the second day of his arguments, the AG had nothing to convince the bench that the NJAC Act and the 99th Constitution Amendment were consistent with the independence of judiciary. On the contrary, he questioned the basis of the Supreme Court’s decisions in the Second and Third Judges cases, and argued that a preponderant role for the judiciary in the appointment process is not the only means to achieve independence of judiciary. It appeared as though the government, having conceded defeat in the adversarial litigation with the petitioners in the case, wanted to save face by seeking a belated reference to an 11-judge bench.
A confident government and an AG would have straightaway tried to show that the NJAC and independence of judiciary are not inconsistent with each other, rather than invoke their defence only as a last resort after exhausting other legal strategies to delay an early judicial resolution of the uncertainty about the validity of its laws.
Under pressure from the AG, who sought an immediate order from the bench on the reference issue, it asked him whether he agreed that the NJAC Act had wiped out the judgment of nine judges in the Second Judges case; if it did, then there was no need to refer the case to a larger bench to consider a judgment which is no longer alive.
The AG was exposed to the criticism that he was adopting the argument of the petitioners, all of whom equated the primacy of the CJI with the independence of the judiciary.
Having argued for the reference to a larger bench, the AG was unable to concede this, and suggested that the NJAC Act did not wipe out the primacy of the CJI as part of the independence of judiciary, which was the salient feature of the judgment in the Second Judges case. This left the AG and the government in a piquant situation, as this contradicted their initial stand that the NJAC replaces the mechanism of the collegium, introduced by the judgment in the Second Judges case. This also exposed the AG to the criticism that he was adopting the argument of the petitioners, all of whom equated the primacy of the CJI with the independence of the judiciary, as explained in the judgment in the Second Judges case.
As the bench meandered beyond the threshold stage on May 7, it was clear that it would not yield to the AG easily by deciding on the reference issue one way or the other, but build the suspense about its outcome till the last day, as the merits of NJAC are inextricably linked with whether it has indeed wiped out what the nine judges had laid down in the Second Judges case on the independence of judiciary and the basic structure.