The judgment of the Supreme Court delivered on Friday striking down the
Constitution (Ninety-Ninth Amendment) Act, 2014 and the National
Judicial Appointments Commission Act, 2014 by a majority of 4:1 is one
of the most significant and everlasting contributions made by the
Supreme Court restoring not only its credibility in the eyes of the
legal profession but also in terms of its ability to openly introspect
and notify suggestions for a better process of appointment of Judges.
Judges of the Supreme Court are appointed under Article 124 of the
Constitution. It is important to bear in mind that any appointment even
by the Executive (as it stood prior to introduction of the collegium
system) was an appointment made by the President i.e. it was an
appointment by ‘the Executive after consultation with the Chief Justice
of the Supreme Court or the High Courts’. Similarly, an appointment of a
Judge of the High Court was again to be undertaken by the President in
consultation with the Chief Justice of India and the Governor of the
respective State. Therefore, it is necessary to bear in mind that even
according to the original frame of the Constitution, the Chief Justice
of India was indeed an effective consultee and, the process which was
followed was that the Chief Justice would recommend suitable names for
appointment as Judges.
The first judgment in S.P. Gupta’s case (1981) was really in the
context of ‘concurrence’ as being synonymous with the term
‘consultation’. It was believed thereafter that the Government could
well rely upon ‘consultation’ as a formality, i.e. the Executive having
the final say in the matter of appointment of Judges. This was sought to
be corrected by a 9-Judge Bench in the Second Judges’ case (1993) which overruled the judgment in S.P. Gupta’s case.
However, in order to ensure that the opinion of the Chief Justice of
India carried overwhelming weight, the Supreme Court necessarily had to
hold that the opinion of the Chief Justice of India was no longer the
opinion of the individual Chief Justice but, in fact, was the opinion of
the judiciary in a collegiate sense. This should necessarily weigh with
the Executive; which could at best return the recommendation for
reconsideration. But, thereafter, the opinion of the Chief Justice would
carry weight, which meant that the recommendation of the collegium was
final.
It must be pointed out that the Memorandum of Procedure dated 30th June
1999, in fact, contemplated timely appointment of Judges. However, it is
a matter of regret that the said Memorandum was not followed in letter
and spirit for which I am afraid the Judiciary is largely to blame.
Another criticism which emerged against the collegium system was that
the collegium instead of promoting pure merit, seemed to make
appointments which did not always reflect the splendour of the superior
judiciary. Further, there was some doubt whether the theory of
‘legitimate expectation’ had itself robbed the High Courts of their
independence because they would in turn look at possible ‘future
prospects’. To the extent, the Second Judges’ case seemed to
suggest that there could be a judicial career from the High Court to the
Supreme Court, I have been of the consistent view that it was an
incorrect interpretation. Rather, the Constitution contemplated a
trilateral judiciary. The Constitution allows the Parliament, by law to
designate courts subordinate to the High Court to be vested with some
powers of the Supreme Court. This is to suggest that in order to be
appointed as Judge, one must note only have characteristics of
fearlessness, independence, ability, but must also have freedom from
temptations of office and intellectual integrity coupled with the
ability to review prejudices which are bound to form in the human mind
from time to time.
The criticisms against the collegium system were broadly on account of -
(a) That some appointments were those of ‘undeserving’ candidates;
(b) That some eminent Judges were not appointed because they did not
conform to the ‘profiling’ of those who were selecting them; and
(c) That little attention was paid to the appointment of Judges in the various High Courts.
Notwithstanding the enlargement of the collegium, these criticisms remained.
It must be noted that compromising the quality of judicial appointments
has serious implications upon the expectations of citizens in their
dealings with the State. In fact, it can alter the ecology of the human
relationship between the citizen and the State as it did during the
Emergency. However, it is also to the credit of the Chief Justice who
superseded Justice Khanna that he took very little time in recommending
those Judges who fearlessly upheld civil liberties thus strengthened the
pillars of the Supreme Court. It was in view of such sociological
factors only that Krishna Iyer J had observed in Sankalchand Himatlal Shah’s case that “Independence
of the judiciary is not genuflexion; nor is it opposition to every
proposition of Government. It is neither judiciary made to opposition
measure nor Government's pleasure”.
In my opinion, consultative criteria for appointments to the superior
judiciary has not been adequately formulated. This could be because
often expression of an idea differs from the idea itself. The need for
an objective criterion is to enable focused application of mind. This
requires a disassociated process by the Chief Justice and the members of
the collegium while considering candidates for appointment to the
superior judiciary. Naturally, such process should also involve a degree
of scrutiny and investigation into the candidature.
In my view, the following 11-point matrix must be followed before a
Judge of the Superior Court is appointed by the collegium, viz.:-
1. Integrity as a lawyer or as a Judge;
2. Ability to be fearless and to withstand pressures from all quarters including the Executive;
3. The ability to distance oneself from one’s own political or other ideology;
4. To act free from prejudice of any kind;
5. The ability to listen;
6. The ability to be able to have a sustained sense of contentment;
7. The ability to develop knowledge in new areas, engage with the legal
profession and other stakeholders with humility, and to become students
as well in the process of learning;
8. The ability to withdraw from friends, former clients, business interests and politicians;,
9. The ability to migrate from a life of authority to the life of a
common man, to be able to frequently observe and imbibe the contemporary
realities of life, to be able to think out of the box freely, to be
familiar with modern technology, and to be able to empathetically read
in different spheres;
10. The ability to cultivate personal interests and hobbies which will make the Judge a well-rounded person; and
11. The ability to draft well-reasoned judgments and write clearly.
I believe that ‘ability’ and ‘character’ are virtues that are
continually cultivated. Indeed, every opportunity enables a person to
develop or negate his character. The challenge to the Ninety-Ninth
Amendment Act was one such test before the Supreme Court.
It must also be borne in mind that there are certain important aspects
which are bound to undermine the independence of the Judiciary. The
first is the policy of transfer of Judges and appointment of Chief
Justices by transfer. In fact, the reasons for transfer of Judges are
unsatisfactory. If the reasons do relate to suspected lack of integrity,
the Judge must be asked to leave his office. Secondly, the appointment
of Chief Justices by transfer, except in rare cases, has led to not only
fractious behaviour between the incumbent Chief Justices, fellow
Judges, and the Bar, but also the inability of the incoming Chief
Justice to understand the ethos and culture of a High Court. Thus, I am
of the firm opinion that if Judges have to be appointed on the basis of
integrity, there is no reason why they should not head the Court as long
as they undertake suitable, interventional measures to cleanse
themselves of any possible prejudices which accrue on account of
intimate knowledge of the place and the members of the Bar.
The second reason due to which the independence of the judiciary has
been diminished is the seeking of financial grants and funds from the
Government. In fact, this has been absolutely deleterious. In my view,
financial autonomy must be granted to the judiciary and the judiciary
would necessarily subject itself to more than rigorous inbuilt scrutiny
particularly in association with the Comptroller and Auditor General of
India and place its expenditures and spending on the floor of the House.
In fact, the Attorney General in Canada presents the budget on behalf
of the Judiciary and there is no reason why the Supreme Court must not
authorise an eminent senior lawyer or the Attorney General on his behalf
to address Parliament and present its outlay. The processing of the
outlay by the Ministries and in particular the Department of Expenditure
has itself led to bureaucratic delays, delay in supply of computers and
spares, and delay in provision and rectification of infrastructural
support to the judiciary – together contributing to delays in
adjudication. The monumental exercise undertaken by the former Chief
Justice S.H. Kapadia on every Monday afternoon to see the conditions of
the District judiciary was not only praiseworthy but also disclosed the
very poor attention which was paid to the conditions of those who are
members of the trial judiciary. In fact, it is the members of the trial
judiciary and the trial lawyers who need the best support, attention and
infrastructure. If the administration of justice begins well in the
courts of first instance, the quality of justice would automatically be
incrementally positive in the Superior Courts.
The third reason due to which the independence of the judiciary has been
diminished is the setting up of a large number of Tribunals under the
“pretext of specialisation” denuding the Courts of their jurisdiction.
In fact, this also insults the members of the Bar, who in order to
perform their duty, are compelled to appear before persons who are not
qualified and competent to either to understand law and to pronounce on
matters of law. The view expressed by the Supreme Court in R. Gandhi’s
case upholding ‘tribunalisation’ with caveats also needs to be
overruled. In my view, Tribunals must be abolished and the powers must
be restored to courts of competent jurisdiction. I have no doubt that a
competent judge would spare no time in learning intricacies of
sophisticated disciplines.
Lastly, post retirement favours to the Judges who look for opportunities
to be associated in some official capacity is an anathema and must be
completely forbidden. It is far better for the judiciary to have its own
housing schemes, proper life time pension and annuities, so that Judges
lead respectable life until the very end. In fact, the sad plight in
which many retired Judges have had to fight for reimbursement of their
medical expenditure would leave one to wonder whether a life of
austerity and integrity must lead them to this end. It is submitted that
these are matters where the judiciary must not compromise in any way.
But to return to the point, A.C. Gupta, J. in the S.P. Gupta’s case rightly said that, “…..Judges had to be protected against interference, direct or indirect…..” and that, “…..the
constitutional provisions should not be construed in a manner that
would tend to undermine the concept of ‘the independence of the
judiciary’…..”. But it is also interesting to note that Gupta, J.
also significantly conceded that even if there was a difference of
opinion between the Chief Justice of India and the Chief Justice of a
High Court, the opinion of the Chief Justice of India should be accepted
by the President unless such opinion suffered from any obvious
infirmity.
One of the important points which the NJAC judgment makes is its deep
understanding of the issue of ‘independence of judiciary’. The
Ninety-Ninth Amendment Act not only did away with the collegium or the
opinion of the Chief Justice having overwhelming weight, but it also
made the Head of the Executive who also was the Head of the Legislative
party as well as the Leader of the Opposition as two important persons
in the selection of ‘selectors’ of Judges. Indeed, such an arrangement
would mean a convergence of the Executive, the Legislature and the
Judiciary which is completely forbidden under the Constitution because
the Constitution does imply and can survive only if there is a
separation of powers. In my view, even the office of the Attorney
General under Article 78(1) is meant to be separate from the Executive
because he is akin to a Judge of the Supreme Court. While the
administration of justice draws its validity from the Constitution, its
credibility must rest in the faith of the people and the legal
profession.
A question has arisen whether there is sufficient accountability of the
judiciary. It must be borne in mind that accountability of a Judge is
subjective but can only be made objective by new processes of
introspection, discussion and interaction. The NJAC judgment for the
first time opens this pathway and allows fresh winds of change to blow
into the matters of judicial appointments. Undoubtedly, the
‘independence of judiciary’ is a central value on which the Constitution
is based.
It is clear from the submissions recorded in the NJAC judgment that the
Union of India took a position completely inconsistent with the
Constitution. It contended that the determination rendered by the
9-Judge Bench in Second Judges’ case was not sustainable. Meaning thereby, it deserved to be overruled. Yet, the Union of India contended that the Second Judges’ case
was not relevant because the Basic Structure of the Constitution would
still not be emasculated by the Ninety-Ninth Amendment Act. In my view,
this argument has been rightly rejected. The law laid down by the
Supreme Court necessarily forms a part of the interpretation of the
various provisions of the Constitution. Therefore, there cannot be any
doubt that the ‘Basic Structure’ being an interpretation of the
Constitution is an integral part of the Constitution itself. The
arguments by the Learned Attorney General which proceeded upon the lines
of S.P. Gupta’s case, i.e. consultation was distinct from
concurrence and that there was a plain tinkering with express words of
the Constitution, were no more than a repetition of the arguments which
had once seen the light of the day and stood rejected. However, some of
the contentions of the Union were indeed objectionable. One of them was a
reference to Article 125 that salary payable to the Judges of the
Supreme Court had to be determined by the Parliament by law. Thus, the
submission was that the Parliament was given an express role to
determine even the salary of Judges which was a condition of service of
the Supreme Court. Further, the appointment of the Judges to discharge
the functions of the Chief Justice of India under Article 126 and also
the special circumstances in which adjudication could be continued under
Article 127 were pressed into service to show a certain overarching
role of the President of India in the administration of justice. These
indeed are exceptional provisions, and they do not in any way suggest
that judiciary was indeed meant to be subjugated in its independence to
the other organs of the State. While the theory of harmony between the
three organs of the State is desirable, but yet as Lord Hope of the UK
Supreme Court correctly pointed out, Judges are hardly meant to please
either the Executive or the Legislature but are meant to deal with
issues relating to the rights of the citizens and determine whether the
Executive acts are within the boundaries of the law and consistent with
human rights. The important contribution of the NJAC judgment is that it
follows carefully the pathway of Chief Justice Sikri in the Kesavananda Bharati’s case.
It may also be noted that the reference to Gobind Ballabh Pant’s answer
on the floor of the House that the recommendation of the Chief Justice
of Supreme Court was honoured is indeed telling. The NJAC judgment
particularly the majority, has taken a view based upon a consistent
understanding that in matters where the power of appointment was
exclusively vested with the President, the concept of aid and advice
would be relevant but certainly not where the provisions for
consultation in the matter of higher judiciary contained different
words. The structure of Justice Khehar’s judgment is impressive. First
part of his opinion deals with the question of recusal, the second deals
with the question of refusal to reconsider the Second Judges’ case and the Third Judges’ case and
is followed by an analysis of the validity of the Ninety-Ninth
Amendment Act. The structure shows a very carefully thought out view.
Khehar, J. noted that, “the question about the maintenance of judicial standards…..” and that “the judicial responsibility in the matter of appointment of Judges”
according to the Learned Counsel being the most important trusteeship
could not be permitted to be shared, with either the Executive or the
Legislature (per Dr. Rajiv Dhavan, Senior Advocate). Judiciary is the
bastion to preserve Constitutionalism. After all, powers of the
Legislature which are sovereign within their own sphere are still
subject to the limitations of the Constitution. In the discharge of its
obligations, the Executive has to be respectful to the Constitution.
The argument of having a Judicial Appointments Commission such as in the United Kingdom, does appear to be a close example. However, it must be
pointed out that there is a considerable distinction between the nature
of the legal profession, the number of Judges and the resources which
are available for the purpose of undertaking such selection in India.
Moreover, in India the Constitution is supreme. One of the important
aspects was about the presence of the Law Minister in the NJAC and the
submission was that his presence would not violate the Basic Structure
of the Constitution. In fact, the Government’s argument was that – (a)
the NJAC would introduce transparency in the process of selection and
appointment of Judges; (b) the appointments would be not secretive; (c)
that civil society could have a say; (d) there could be a
diversification of the selection process; and (e) there would be a
degree of assurance of selection of the best candidates.
Even though the above arguments seem attractive, it must be stated that
the nature of appointments to the Superior Judiciary cannot be simply
subjected to a multifarious combination of the above factors because the
consequence would be that the consideration of candidature of an
appointee or a likely appointee itself could be imperilled.
The majority with which the Lok Sabha and the Rajya Sabha passed the
said amendment and the subsequent ratification of the Bill by the State
Assemblies, were as also pressed into service as an argument. Thus the
contention of the Union that the unanimous will of the people was
reflected in the Ninety-Ninth Amendment Act must be deemed to be
expressive of the desire of the nation.
In my view, this indeed is the true test. It is not the ‘desire of the
people’, rather the compatibility of a law which seeks to amend the
Constitution with the Basic Structure with which the Supreme Court was
concerned. It must also be mentioned that the strength and
enforceability of a Constitutional amendment must be only with reference
to the Constitution and to that extent Khehar, J. who rejected the
argument of majoritarianism as a means of testing the validity of the
Ninety-Ninth Amendment Act has rendered a great service in upholding the
independence of the judiciary and thereby, that of the Rule of Law.
Article 124A which was the cornerstone of the Ninety-Ninth Amendment Act
was clearly a direct attempt to dismantle the judiciary and has been
rightly repelled. I may also add that the comparative law research
undertaken by Khehar, J. in his judgment and in particular his reference
to the standards of judicial independence in the European Court of
Human Rights is significant. There is no doubt that ‘objective and transparent criteria’
for selection and appointment needs to be devised and implemented. This
is necessary because if an appointee does not have requisite skills and
abilities to discharge his or her function, it would result in direct
dilution of judicial independence. It is also interesting to note that
the independent opinions expressed in various international conferences
and particularly the Bangalore Principles of Judicial Conduct (which in
turn have been incorporated and recognised even in England) are relevant
to determine who could secure such appointees. Obviously, it is a very
serious duty cast upon the Courts, particularly, the Chief Justice and
his companion Judges. Similarly, the Chief Justice of a High Court and
his companion Judges have a corresponding duty. But in my view, the
journey has only begun.
It is important to note that Khehar, J. admits the collegium system
having been the subject of criticism and also records that independence
of the judiciary is not physical but metaphysical. In fact, the very
process of having an independent Judicial Appointments Commission was to
take it away from the Executive in the form of Lord Chancellor.
Nevertheless, I regard that the Supreme Court would be benefited by a
very careful and serious dialogue with members of the Bar, the leaders
of the legal profession to determine what possible changes can be
brought about for the purpose of ensuring that even after the
Ninety-Ninth Amendment Act is struck down, the true aspirations of the
Supreme Court reflected in the earlier judgments and in particular in
many of the expressions of Venkatachaliah, CJ could be realised. Indeed,
one must not forget that the lifeblood of an independent judiciary has
been the contribution made by many Judges who have given their lives
quietly and stoically in service of the cause of justice. The portraits
of Justices Harilal J. Kania, Bijan Kumar Mukherjea, T.L. Venkatarama
Ayyar and H.R. Khanna are only meant to signify that the four portraits
which stood for four separate facets of judicial excellence must guide
the Supreme Court. But indeed it must be said to the great credit of the
Supreme Court that the manner in which they have welcomed that the true
faith and allegiance to the Constitution will require multiple skills
reflects maturity and a progressive view. Without such multiple skills
discharge of duties as contemplated under the Bangalore Principles of
Judicial Conduct, 2002 ( per Kurian Joseph, J.) would remain a
challenge. The nature of the judicial function does involve the
performance of difficult and at times unpleasant task (per Kurian
Joseph, J.). In the succinct opinion of Goel, J., who effectively
summarised the procedure for appointment and rightly framed the question
whether the primacy of judiciary and the absence of Executive
interference in the appointment of Judges is a part of the Basic
Structure. In my view, Goel, J.’s opinion correctly answers the question
with reference to an understanding of the majority opinion in the Kesavananda Bharati’s case.
Similarly, Lokur, J. who in addition to carefully analysing the
previous judgments has also spoken about the need to think differently
as the advances in society have left the door ajar.
The final order pronounced by the Supreme Court clearly says that the matter will be listed on 3rd November, 2015 “to consider introduction of appropriate measures, if any, for an improved working of the collegium system…..”.
This is a new beginning by the Supreme Court. It is to the credit of
the five Judges that they have stood up for the Basic Structure and they
are willing to remedy the possible ‘errors’ with an open mind, and
avoid the possibility of efforts in future. I have no doubt that they
would devise pre-eminently suitable objective criteria for selection and
appointment of Judges; even if it is not the 11-point matrix suggested
above.
Lastly, I must add that these norms must be applicable for all judicial
appointments be that to the Supreme Court, the High Court or the Trial
Court. The Constitution envisages judges of comparable and if not equal
merit at all the levels of the judiciary. The Supreme Court owes this to
itself in the Constitution. The nation must be grateful.
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