The long-awaited tantalizing Supreme Court judgment in the NJAC case was out in the public domain on October 16—about four months after the conclusion of hearings. The court essentially struck down as unconstitutional the amendment that validated the National Judicial Appointments Act passed by parliament and thus paved the way for the continuance of the collegium system for the appointment of judges to the higher judiciary. Union Law Minister Sadananda Gowda reacted by saying the judgment was surprising. Arun Jaitley called it the “tyranny of the unelected”. As usual, the declared and undeclared spokesmen for the Congress party and other opposition parties attacked Jaitley and hailed the judgment. They were obviously guided by political interests, forgetting that all the parties had unanimously passed the legislation in parliament. Justice RM Lodha, the former CJI, advised a no confrontation course, but counseled improvement in the collegium system.
To put things in perspective, one must examine the background and contours of the appointments issue. The “First Judges Case” in 1981, presided by a seven-member bench, interpreted the words “shall in consultation with CJI in Article 217” to mean effective and meaningful consultation without giving primacy to the views of the CJI. The Second Judges Case in 1993, presided by 11 judges, interpreted the words “consultation in Article 124” to mean concurrence and that the views of the CJI along with two seniormost judges would be binding on the president.
This is how the collegium system was evolved. The interpretation was essentially a judge-made law not found in the text of Article 124. The interpretation of the word “consultation” was in the light of the constitutional debates, in which Dr BR Ambedkar rejected giving primacy to the views of the CJI and chose a mid-path of effective consultation with the CJI.
In the Third Judges Case in 1998, presided by an 11-judge bench, the Attorney-General (A-G) at the outset submitted that the government does not want to seek review or reconsideration of the rationale laid down in the Second Judges Case. The arguments were addressed only on the question of reference made by the president.
The Third Judges Case expanded the numerical strength of the collegium to the CJI plus four seniormost judges for elevation to the Supreme Court and transfer of the judges of the High Court. The CJI, plus two seniormost judges, were to be the collegium for appointment of judges and chief justices of High Courts. It was further laid down that the views of the concerned seniormost state judge in the Supreme Court should be taken.
“The lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society.”
Since there were large numbers of vacancies in high courts that remained unfilled, the judgment in the Second Judges Case directed filling up the vacancies immediately. It prescribed the time-frame of the procedure. It was also stated that the Supreme Court collegium is an expert and the best judge to appoint suitable persons. Thus, it held that executive interference in the appointments is obviated, which ensures the independence of the judiciary. The purpose for which the collegium system was evolved utterly failed. Neither were the vacancies filled up in time nor were efficient and suitable judges appointed to high courts to dispose civil, criminal and tax matters expeditiously. Cases of this nature are still pending for over 10 to 15 years.
Also, a strong sense got ingrained in the high court collegium that it must remain obeisant to the Supreme Court collegium and to the state judge in the Supreme Court. All recommendations made by the high court collegium had to be in accordance with the wishes of the apex court collegium and state judge or there was the imminent risk of these being rejected. The reasons for rejection are not even made known to the high court collegium. For this reason, the vacancies in the high courts could not be filled up, and at times, unsuitable persons got elevated.
The lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society. The Second Judges and Third Judges cases permitted recommendations with dissent but the
collegium intelligently avoided recommending any case with dissent to prevent indulgence of the executive.
The recommendations for appointment, non-appointment, transfer and complaints against the judges are not subjected to RTI and judicial review under the pretext that the litigative debate would result in erosion of credibility of the decisions.In the case of a junior judge to be elevated overlooking his senior, it was said that the outstanding merit of the person recommended need not be compared with that of the senior judge bypassed. Only the outstanding merit of the person recommended be stated. The judgment of outstanding merit is also a subjective one. The collegium system has been criticized by Justice Punchi as judicial oligarchy.
There were abortive attempts to establish a Judicial Commission in 1990 and 2003. The UPA government too was strongly in favor of creating a Judicial Commission. Both the houses of the present parliament unanimously passed the constitutional amendment to incorporate Article 124A and enacted the NJAC Act. The object of NJAC was to bring in transparency and objectivity in the matter of appointments to the higher judiciary which was being rampantly breached in the collegium system.
The basic challenge against the NJAC before the Court was that it impinges the independence of the judiciary which is one of the postulates of the basic structure of the constitution. The constitution bench, presided by Justice JS Khehar, by 4:1 struck down the NJAC and the constitutional amendment as ultra-vires as it scuttles the judiciary’s independence. The wisdom of the judgment has to be judged by the reasons upon which the conclusions of the judgments are based.
The following are the broad reasons given by the judges in their separate judgments: (1) The A-G at the outset submitted in the Third Judges Case that the government does not wish to seek review or reconsider the decision in the Second Judges Case; (2) The memorandum of procedure evolved by the executive gives it adequate and fair participation in the process of appointments; (3) The controversial recommendations made by the collegium have been accepted by the executive without any demur. Thus, there was a failure on the part of executive in not performing of constitutional duty. For that, the collegium system cannot be condemned; (4) The presence of the law minister in NJAC tantamounts to executive interference; (5) The veto power given to eminent persons is vulnerable to misuse and they can veto any and every recommendation made by the CJI and two seniormost judges in the NJAC; and (6) The judges elevated by a political lobby would be loyal to the political bosses and a sense of reciprocity will prevail in them. Thus, the judgments rendered in crucial matters may not be free and fair.
There is a counter to the judgment. The first reason was that in the Third Judges Case, the Union government did not seek review or reconsideration of judgment in the Second Judges Case. But this cannot stop the parliament from enacting a law. (2) The fact that the government did not oppose the controversial appointments is also not a factor to prevent parliament from making a law. In fact, when there have been inappropriate compromises between collegium and the executive, the parliament has every right to enact a law which is more transparent and objective. (3) It’s again a myth that the memorandum of procedure gives fair and adequate participation for the executive.
The recommendations from the high court collegium are always influenced by the collegium judges and the state judge in the Supreme Court. What transpires behind closed-door meetings of the collegium is not known to anybody.
The Supreme Court collegium, to suit its convenience, always makes unanimous recommendations cryptically, without any reasons, lacking objectivity. (4) The view that the presence of the law minister in the NJAC amounts to executive interference and the tendency to condemn all politicians, parliamentarians and ministers as non-trustworthy to uphold the constitution lacks requisite judicial respect for other constitutional institutions and functionaries. In the memorandum of procedure, the participation of the law minister is accepted for giving inputs. But, his presence in the discussions among the judges of the Supreme Court is one that becomes uncomfortable to the collegiums since such presence does not give scope for the arbitrary decisions of the collegium. (5) That eminent members will misuse veto powers arbitrarily and oppose the names proposed by the judges of the Supreme Court is an untenable view. The eminent persons are appointed by the committee consisting of Prime Minister, CJI and the leader of the opposition. Therefore, the inference and the view that eminent persons would always be partisan and to suspect their intellectual integrity is an untenable view and it is an affront to civil society. Integrity and probity is not the sole monopoly of judges and the legal community. The object of participation of eminent persons is to only ensure transparency, objectivity and credibility of the discussions and decision taken by the NJAC.
One of the judges made a reference to LK Advani’s statement that an Emergency-like situation can still occur. A reference was also made to the removal of governors by the NDA government and attributing political motives in the Teesta Setalvad case—these are out of the purview of the legal parameters and not appropriate to be made as reasons for striking down the NJAC. One of the judges noting that LGBT candidates will have no scope for elevation in the NJAC system is an amusing view.
The National Commission to Review the Working of the Constitution (NCRWC), headed by Justice MN Venkatachalaiah, along with the team of former judges of the Supreme Court and eminent personalities, did suggest a National Judicial Commission consisting of the CJI, chairman, two seniormost judges of the Supreme Court, Union minister for law and justice, and one eminent person nominated by the President to replace the collegium system. In fact, the majority judgments do not make any reference to this aspect. It cannot be said that the chairman and members of NCRWC had glossed over the concerns of independence of the judiciary while making the suggestion.
Majority of the judges held that the collegium system which evolved in the Second and Third Judges Case does not require any reference to a larger bench and the law laid down is correct. If it is so, where is the need for the bench to hear the issue of making improvements in the collegium system? Will this bench of five judges be competent to add suggestions to the guidelines laid down by the 11 judges’ bench to improve the collegium system? It is implicit that the collegium system suffers from many legal infirmities. If at all the exercise is needed to improve the collegium system, it should be by a larger bench of 13 judges.
The judges could have read the provisions of the NJAC Act, guidelines could have been laid down prescribing the parameters for those who could be considered to be appointed as an eminent person and made the provisions of NJAC Act in accordance with the constitutional spirit instead of improving the failed collegium system.
One gets the feeling that the judges are not prepared to give up their arbitrary power of making/ influencing recommendations for elevation to the higher judiciary. Absolute power corrupts absolutely; judges are no exception to this adage.