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Fresh move on judges’ appointments needed

Govind Goel |

The work to draft the Constitution began seventy years ago, when the Constituent Assembly of India first met on 9 December 1946. The final document which emerged nearly three years later, during which interregnum India attained independence, contemplated to govern this sovereign nation and it defines the space for vital organs of the State, particularly the executive, legislature and judiciary. Though not embodying the American style of vesting of powers, a clear assignment of powers and obligations to each of these organs with their corresponding limitations, indisputably inheres in the Indian Constitution. The Constitution expects each organ to perform its functions while at the same time expects the avoidance of conflict between them.

Although Parliament, in its form as a legislative body or a constituent body is supreme in implementing policy by enactment of law or constitutional amendment, equally the Supreme Court is plenary in testing the legality of such law or amendment. The distinction between propriety and legality of a policy, law or constitutional amendment is key to our constitutional dynamic – judging the propriety of a law is not only the exclusive domain, but the supreme duty of Parliament as a body accountable to the people for its promises; while guarding against unconstitutional actions, however benevolent they may be, lies at the heart of the Court&’s power of judicial review. 

Honouring its commitment “…to accord high priority to judicial reforms to address the issue of appointment of judges…to set up a National Judicial Commission for the appointment of judges in higher judiciary” (BJP Manifesto for 2014 General Elections, p.12), the present Government, capitalising on rare political unison, proceeded to substitute the much-criticised and opaque collegium system for selection and appointment of persons as judges of the High Court and Supreme Court with a broad-based and transparent system for such appointments. A major judicial reform thus ensued in the form of the Constitution (Ninety-ninth Amendment) Act, 2014, so as to provide for consultation with a six-member National Judicial Appointment Commission (NJAC) in the matter of these appointments, and also for undertaking transfer of High Court Judges, replacing the existing requirement of consulting the Chief Justice of India, such of the judges of the Supreme Court and of the High Courts as may be deemed necessary, the Governor of the State and the Chief Justice of the concerned High Court. 

The NJAC is contemplated to consist of Chief Justice of India, two senior most judges of the Supreme Court, Union Law Minister (all ex-officio) and two eminent persons [Article 124-A]. Simultaneously, Parliament enacted the National Judicial Appointments Commission Act, 2014, the glaring provision of which is the inability of a recommendation to be made in case of disagreement expressed by any two members [second proviso to Section 5(2)].

When the 99th Amendment and the NJAC Act were assailed on the ground of their transgressing the basic structure of the Constitution, a Constitution Bench in its judgment delivered on October 16 last year [Supreme Court Advocates-on-Record Association v. Union of India), by majority of 4:1, held that the principle of primacy of judiciary in the matter of appointment of judges of the High Court and Supreme Court which formed part of the independence of judiciary was adversely affected by the 99th Amendment and the NJAC Act, on account of three factors, viz. the two ‘eminent persons’ were not required to have anything to do with the field of law or judiciary, and there was no qualification or disqualification prescribed for such ‘eminent persons’; the veto power exercisable by any two members can lead to stalling of a proposal for appointment as Judges of the High Court and Supreme Court, and the inclusion of the Union Law Minister as an ex-officio member of the NJAC. Since independence of judiciary is a basic feature of our Constitution, no law and not even a constitutional amendment which possesses enormous democratic pedigree, can abridge it. 

While the Court struck down the well-intentioned measures to replace the collegium system, it acknowledged the ways in which the same could have been brought within the confines of the Constitution. In respect of “eminent persons”, the Court noticed that the situation would have been different had the expression been “eminent jurists”, or if some qualifications or disqualifications would have been prescribed. Similarly, the Court ponders on the power to two of the six members of NJAC to veto a proposal, threatening judicial independence, while if the NJAC were to take decisions by majority, such a threat could have been averted. Arguably, interpretive techniques could have been used in addressing these issues to resultantly save the new regime. Legislation and constitutional amendments reflect the representative will of the people, and there is a presumption of their validity. Normally, there is deference by a constitutional court to such representative will. Being the final interpreter of law and the Constitution, the Court is equally empowered to adopt a suitable interpretation to uphold and save laws from being struck down. All the same, the Court seems to have not adopted such an approach and while striking down the 99th Amendment and NJAC Act, restored the collegium system for judicial appointments. 

In a sequel of 16 December 2015, after noticing concerns relating to transparency and accountability in judicial appointments, the Court left it to the executive to redraft the Memorandum of Procedure (MoP) for regulating the working of the collegium system. 

Various legislative and constituent actions have been struck down from time to time, on account of their having been found constitutionally deficient and pursuant to such striking down, Parliament has often taken the necessary action as per the requirements of  time by removing the deficiencies pointed out by the Court. For example, when land reform laws met with judicial disapproval, the first Parliament came forward with the first Constitutional Amendment in 1951. 

Perhaps, the executive-judiciary confrontation reached its peak on account of three successive constitutional amendments made to displace three eleven-Judge Bench judgments of the Supreme Court. In Golak Nath v. Union of India (AIR 1967 SC 1643), the Court held that a constitutional amendment cannot be in negation of the fundamental rights. The constituent body clarified that a constitutional amendment was not governed by the mandate of Article 13 and thus did not require adherence to Part III [24th Amendment, 1971]. Similarly, the 25th and 26th Amendments in the same year overturned the position in the Bank Nationalisation and Privy Purses judgments both delivered in 1970. In the Fundamental Rights case [AIR 1973 SC 1461], the larger Bench of 13 judges acknowledged that the premise in Golak Nath case was not correct and laid down a new basic structure doctrine for testing a constitutional amendment. Similarly, the 25th and 26th Amendments were upheld by the Supreme Court. 

More recently, in the last two decades, constitutional amendments in order to overcome Court judgments in areas of reservation of posts in public employment and educational institutions have been approved.

Re-enactment is a step consistent with the keenness to bring about reforms considered desirable by a democratically elected government, especially when there is adequate socio-political support. It is naïve to presuppose that any further step to implement the overwhelmingly unanimous political agenda of reforms in judicial appointments will be met with judicial disapproval. On the contrary, achieving such an agenda through MoP is both covert and half-hearted, since MoP is merely an executive action and has no legislative or constitutional backing – it is a measure to tide over till such a time that a constitutionally sustainable method of judicial appointments is put into place.

While promising to address the issue of judicial appointments and setting up a National Judicial Commission, the BJP Manifesto declared “to ensure Justice for All – justice which is prompt and accessible. Understanding that Justice Delayed is Justice Denied, we will adopt a multi pronged approach to address the high pendency of cases in our judicial system.”  The urgency to finalise MoP is thus grounded in the need to fill judicial vacancies which are presently at record numbers, and although do not singularly result in judicial backlog, but indubitably contribute heavily to it. At the same time, steps to set up a constitutionally sustainable alternative to the collegium system, ought to begin.

The writer is a practising lawyer at the Supreme Court of India and author of “Statement of Indian Law: Supreme Court through its Constitution Bench Judgments since 1950”.