A five-member Constitutional Bench of the Supreme Court, with its 4-1 verdict against the 99th Constitutional Amendment and the National Judicial Appointments Commission Act, has triggered an intense debate among legal experts, the Central government and political parties. Against this backdrop, we bring you excerpts from the strongly-worded opinion against the judgment penned by Justice Jasti Chelameswar, the lone dissenting voice of the Bench
We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us? Has all the independence acquired by the judicial branch since 6th October, 1993 been a myth — a euphemism for nepotism enabling inter alia promotion of mediocrity or even less — are questions at the heart of the debate in this batch of cases by which the petitioners question the validity of the Constitution (99th Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014.
Fortunately, there is no difference of opinion between the parties regarding the proposition that existence of an independent judiciary is an essential requisite of a Democratic Republic. Nor is there any difference of opinion regarding the proposition that an independent judiciary is one of the basic features of the Constitution of India. After some 20 years of the working of the regime created under the Second Judges case (Collegium system), serious questions arose whether the regime emanating as a consequence of the interpretation placed by this Court, yielded any constitutionally aspired result of the establishment of an independent and efficient judiciary — CONSTITUTIONAL COURTS. Answer regarding independence can be subjective, and efficiency, perhaps, may not be very pleasant.
Within a few years doubts arose regarding the true purport of the Second Judges case. The President of India invoked Article 143 and sought certain clarifications on the judgment of the Second Judges case leading to the opinion of this Court. Unfortunately, the factual matrix on which doubts were entertained by the Government of India are not recorded in the opinion. But para 41 of the Third Judges case records: “. …We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion.” No wonder, gossip and speculations gather momentum and currency in such state of affairs. If a nine-Judge Bench of this Court takes an optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all, at least in some cases attracting comments.
In the next one-and-a-half decade, this nation has witnessed many unpleasant events connected with judicial appointments — events which lend credence to the speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary. I am aware that a few bad examples of the improper exercise of power does not determine the character of the power. Such inappropriate exercise of power was resorted to also by the Executive already noticed earlier. Both branches of government are accusing each other of not being worthy of trust. At least a section of the civil society believes that both are right. The impugned AMENDMENT came in the backdrop of the above-mentioned experience.
Articles 124 and 217 deal with one of the elements necessary to establish an independent judiciary — the appointment process. The system of Collegium, the product of an interpretative gloss on the text of Articles 124 and 217 undertaken in the Second and Third Judges case, may or may not be the best to establish and nurture an independent and efficient judiciary. There are seriously competing views expressed by eminent people, both on the jurisprudential soundness of the judgments and the manner in which the Collegium system operated in the last two decades. Neither the jurisprudential correctness of the concept of Collegium nor how well or ill the Collegium system operated in the last two decades is the question before us. The question is — whether such a system is immutable or is Parliament competent to amend the Constitution and create an alternative mechanism for selection and appointment of the members of CONSTITUTIONAL COURTS of this country.
By the very nature of the basic feature with which we are dealing, it does not confer any fundamental or constitutional right in favour of individuals. It is only a means for securing to the people of India, justice, liberty and equality. It creates a collective right in favour of the polity to have a judiciary which is free from the control of the Executive or the Legislature in its essential function of decision making. The challenge to the AMENDMENT is required to be examined in the light of the preceding discussion. The petitioners argued that (i) Independence of the judiciary is a basic feature (COMPONENT) of the basic structure of the Constitution; (ii) the process of appointment of members of constitutional courts is an essential ingredient (ELEMENT) of such COMPONENT; (iii) the process prescribed under unamended Articles 124 and 217, as interpreted by this Court in the Second and Third Judges cases, is a basic feature and was so designed by framers of the Constitution for ensuring independence of the judiciary, by providing for primacy of the opinion of the CJI (Collegium); and not of the opinion of the President (the Executive); (iv) the AMENDMENT dilutes such primacy and tilts the balance in favour of the Executive, thereby abrogating a basic feature, leading to destruction of the basic structure.
The prime target of attack by the petitioners is Section 2(a) of the AMENDMENT by which the institutional mechanism for appointment of judges of constitutional courts is replaced. According to the petitioners, the AMENDMENT is a brazen attempt by the Executive branch to grab the power of appointing Judges to CONSTITUTIONAL COURTS. Such shift of power into the hands of Executive would enable packing of the CONSTITUTIONAL COURTS with persons who are likely to be less independent. It is further argued that the principles laid down in the Second and Third Judges cases are not based purely on the interpretation of the text of the Constitution as it stood prior to the impugned AMENDMENT but also on the basis of a fundamental Constitutional principle that an independent judiciary is one of the basic features of the Constitution. The procedure for appointment of the Judges of the CONSTITUTIONAL COURTS is an important element in the establishment and nurturing of an independent judiciary. Such conclusion not only flows from the text of the Articles 124 and 217 as they stood prior to the impugned AMENDMENT but flow from a necessary implication emanating from the scheme of the Constitution as evidenced by Articles 32, 50, 112(3)(d), 113(1), 203(1), 125(2), 221(2) etc.
Mr Nariman, learned Senior Counsel appearing for one of the petitioners, emphatically submitted that he is not against change of the mechanism provided under Articles 124 and 217. He submitted that this aspect of the matter fell for consideration of Justice MN Venkatachaliah Commission, which also recommended creation of a National Judicial Appointments Commission but with a slightly different composition. If really Parliament wanted to change the mechanism for the selection of the members of the superior judiciary, the model recommended by the Justice MN Venkatachaliah Commission could well have been adopted. According to Mr Nariman, the model identified by Venkatachaliah Commission is more suitable for preservation of independence of the judiciary than the model adopted in the AMENDMENT. Mr Nariman further argued that no reasons are given by the Union of India explaining why recommendations of the Justice MN Venkatachaliah Commission were not accepted.
Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary. Such an assumption has been proved to be of doubtful accuracy. It is Parliament’s asserted assumption that induction of civil society representation will bring about critically desirable transparency, commitment and participation of the ultimate stakeholders — the people, the fountain of all constitutional authority, to ensure appointment of the most suitable persons with due regard to legitimate aspirations of the several competing interests.
Various democratic societies have and are experimenting with models involving association of civil society representation in such selection process. Assessment of the product of such experiments are however inconclusive. The question is not whether the model conceived by the AMENDMENT would yield a more independent and efficient judiciary. The question is whether Parliament’s wisdom and authority to undertake such an experiment by resort to constituent power is subject to curial audit.
As rightly pointed out by the Attorney General, the basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium) but lies in non investiture of absolute power in the President (Executive) to choose and appoint judges of CONSTITUTIONAL COURTS. That feature is not abrogated by the AMENDMENT. The Executive may at best only make a proposal through its representative in the NJAC, i.e. the Law Minister. Such proposal, if considered unworthy, can still be rejected by the other members of the NJAC. The worth of a candidate does not depend upon who proposes the name nor the candidate’s political association, if any, should be a disqualification.
To wholly eliminate the Executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people. Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature.
Even prior to the AMENDMENT, the constitutional text had no express guidelines for the President and the CJI to follow. It is however nobody’s case that the pre-AMENDMENT selection scenario conferred any uncanalised discretion and therefore resulted in some undesirable judicial appointments. If in practice, occasionally personal preferences outweighed concerns of public interest resulting in undesirable appointments, it is not because of constitutional silences in this area but because of shortcomings in the ethical standards of the participants in the selection process. After the AMENDMENT, the obligation is unvaried. The only change is in the composition of the players to whom the task is entrusted and the mode of performing the task is altered with a view to achieve greater degree of transparency in the selection process. To contend that the AMENDMENT is destructive of the basic structure since it does not lay down any guidelines tantamounts to holding that the design of the Constitution as originally enacted is defective!
Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various CONSTITUTIONAL COURTS of this country is clearly not a certificate of efficiency. The frequency with which the residuary jurisdiction of this Court under Article 136 is invoked seeking correction of errors committed by the High Courts, some of which are trivial and some profound coupled with bewildering number of conflicting decisions rendered by the various benches of this Court only indicate that a comprehensive reform of the system is overdue. Selection process of the Judges to the CONSTITUTIONAL COURTS is only one of the aspects of such reforms. An attempt in that direction, unfortunately, failed to secure the approval of this Court leaving this Court with the sole responsibility and exclusive accountability of the efficiency of the legal system.