Developments associated with the NJAC

The National Judicial Appointments Commission Act, 2014, seeks to “regulate the procedure to be followed by the National Judicial Appointments Commission (NJAC) for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith and incidental thereto”i. The operation of the NJAC as the appointing body for higher judiciary, in effect, implies the displacement of the long-standing Collegium system: a unique manner of appointment whereby judges are appointed by the President, in consultation with a closed group comprising of the Chief Justice of India and four next most senior judges of the Supreme Court. The judiciary being responsible for- and, in fact, having a monopoly over- its own appointments is witnessed to be an unprecedented trend in present-day legal frameworks across polities, and it was in response to the criticism leveled against this Collegium system that the NJAC saw its emergence.

A prerequisite for the operation of the NJAC was the modification of constitutional provisions particularly Articles 124 and 217, so as to allow the incorporation of the altered appointment method without offending the Constitution. Consequently, an enabling legislation accompanied the NJAC Bill for the consideration of the Union Parliament, in the form of the Constitutional (One Hundred and Twenty-First Amendment) Bill, 2014, which went on to become the Constitutional (Ninety-Ninth Amendment) Act, 2014.

Article 124A, sought to be inserted by way of the 99^th Constitutional Amendment Bill, 2014, lays down the composition of the said six-member NJAC: the Chief Justice of India as the ex-officio Chairperson, “two other senior Judges of the Supreme Court next to the Chief Justice of India” and the Union Minister in charge of Law and Justice being ex-officio members, accompanied by two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the Peopleii.

Appointment associated with the NJAC Bill (and Act), largely extending to the challenge to its constitutional validity before a five-judge Supreme Court bench, can be comprehensively traced as followsiii:

 August 2014

•        Reference to constitutional bench: The NJAC Bill was passed by the Parliament and within the month, it was challenged in the Supreme Court, along with the 121^st Constitutional Amendment Bill, on the ground that they violate the basic structure of the Constitution by infringing on judicial independence.  In keeping with the contention of the petitioners and in light of Article 145(3) of the Constitution of India, the three-judge bench led by Justice Anil Dave declared that “we are of the view that these petitions involve substantial questions of law as to the interpretation of the Constitution of India and therefore, we direct the Registry to place all the matters of this group before Hon’ble the Chief Justice of India so that they can be placed before a larger Bench for its consideration”iv.
•          Petition declared premature: A five-judge Constitutional Bench led by Justice A.R. Dave, by an order dated 25^th August 2014, refused to entertain the petitions, observing that it is too “premature” for the court to intervene as the 121st Constitution Amendment Bill was yet to be ratified by half the State Legislative Assemblies; until the Act comes into force, cause of action cannot be said to have arisen. However, the Bench also observed that the parties could move the Supreme Court on the same ground at an appropriate stage

December, 2014:

•     Presidential approval: On 31^st December 2014, the President granted his approval to the NJAC Bill, 2014 and the enabling 121^st Constitution Amendment Bill.

April 2015:

•    Alteration in Bench: Justice J.S. Khehar started to head the five-judge bench after Justice Dave recused himself from hearing the said proceedings, in acceptance of senior counsel Fali S. Nariman’s submission. Mr. Nariman raised the question of conflict of interest, stating that there persisted a conflict of interest and Justice Dave must decide whether he wanted to head the Constitutional Bench or be part of the NJAC. A similar preliminary objection as to whether Justice Khehar should preside over the Bench, given the fact that he is the fourth senior most judge and therefore part of the Collegium,  was dismissed by unanimous opinion of the Benchv.
•    Re-appointment of existing additional judges: Emerging concerns over the effect that the pendency of proceedings may have over the functioning of courts led the Attorney General, Mukul Rohatgi, to declare that existing additional judges, whose terms are ending while the constitutional bench is hearing the case of the Commission’s validity, will be re-appointed or confirmed and no judge will lose his or her job because of the new system of judicial appointments. Further, the Centre assured the Supreme Court that no fresh appointments of High Court and Supreme Court judges will be made until the question of validity of the NJAC is decided upon.
•     Submissions of petitioners challenging the NJAC: On 27^th April 2015, the hearing of petitions challenging the constitutionality of the NJAC Act commenced. Senior counsel Fali S. Nariman contended along several lines of argument:

•   the validity of new law on appointment of judges cannot be sustained as it violates the basic structure of the Constitution;

•    no “weightage or primacy” has been given to the views of the Chief Justice of India in selection of judges;

•   referring to the constitution of the six-member panel, he said, who will decide if the panel gets divided vertically on the question of appointment of a judge;

•      a Chief Justice of a High Court is not a participant of the NJAC but can only send his recommendation to the NJAC;

•      “preponderance” of views of three senior most judges of the apex court, as recommended by the Justice Venkatachaliah panel, has not been not provided for by the NJAC Act.

Nariman was supported by Anil Divan, the mainstay of whose argument extended to the submission that “the manner in which it (NJAC) has been constituted, the Act has altered the basic structure of the Constitution”.

Further supplementing these arguments, senior advocate Arvind P. Datar questioned the Central Government’s intention by pointing out that no criteria had been stipulated to determine the inclusion of  “eminent personalities” in the NJAC.

• Reference to higher bench refused: The Supreme Court decided that for determining the constitutionality of the NJAC, it will not make a reference to its nine-judge bench or eleven-judge bench. The Attorney General, Mr. Mukul Rohatgi, had been attempting to maintain that if the Court was relying on the nine-judge bench judgment of the year 1998 (In re Special Reference 1) or the seven-judge bench judgment of 1993 (Supreme Court Advocates-on-Record Association v. Union of India), both of which formalised the Collegium system, then the present petitions are to be referred to a Bench of nine or eleven judges.
•   Impact of NJAC: The ongoing proceedings progressed to a deliberation as to the effect that the NJAC Act may have on the working of the judiciary in India, with the Bench expressing a critical view of the proposed method of judicial appointment. It posed questions as regards the working of the NJAC, with particular emphasis on the manner, if any, in which it would make judicial functioning more “meaningful and accountable”. The reference made by the Bench pertained directly to the Statement of Objects and Reasons in the NJAC Act, 2014: “The said Commission would provide a meaningful role for the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.”

Further, in response to the provision in the Act pertaining to the nomination of two eminent persons by a three-member panel of the Prime Minister, Leader of Opposition or the leader of the largest opposition party and Chief Justice of India, the bench tersely observed how two politicians, with the Chief Justice of India “sandwiched” between them, decide on two laymen interfering in judicial appointments.

•     Merit of the Collegium system: The focus of the hearing moved onto a weighing of the merit of the Collegium system as a method of appointment of judges. Justice Khehar, on behalf of the Bench, remarked that the Collegium system worked well, conceding that it may have been in need of improvement, the observation having been made in response to Mr. Ram Jethmalani’s submission stating that the sole grievance against the Collegium system was the lack of transparency. The Bench persisted, categorically declaring that “We only select the best lawyer who can be appointed as a judge. His morality, integrity and behaviour in society are all considered… Tell us one instance where our recommendation has proved wrong.”. Further, reacting to Mr Jethmalani’s suggestion that the system should have included the procedure of advertising for judges’ posts, Justice Khekhar said, “Even without advertisements, we receive thousands of letters… If we advertise, it will create more problems”.

In pursuance of these submissions, the court directed the Centre to submit statistics which can throw some light on the complaints against the collegium system: In how many cases the Centre raised objections after the Supreme Court and the High Court collegium cleared names for judges’ appointment; in how many cases the appointments were reiterated despite the Centre’s objections; and in how many cases those persons were not appointed.

•    Rejection of plea for re-consideration of 1993 judgment: The Supreme Court discarded the Attorney General’s attempts to bring the Bench to reconsider the 1993 judgment that ushered in the Collegium system, citing it to be an irrelevant consideration at this stage. “If you are successful in showing to us that the interpretation of the nine-judge giving primacy to the CJI is wrong, you still don’t succeed unless you succeed in showing that the present (NJAC) system does not undermine or impinge upon the independence of judiciary,” observed the Bench.

The Attorney General submitted that the primacy of the CJI in appointment of judges will be detrimental to the consultative process. The Bench remarked that the “government was the first one to agree about judicial primacy. You can’t change your position everyday. What is the compulsion now to change your stand… are you saying we were wrong in 1993?” and rejected the argument by stating that the President will continue to rely on others outside of the Collegium. Further, the Bench maintained that even the Collegium itself did not impinge upon the checks and balances envisaged in the Constitution.

•       Concern as to administration of judiciary: The Bench clarified that the matter before it, relating to the challenge to the NJAC Act, can be referred to a larger bench at a later stage, if required; however, rejecting the Centre’s plea of immediate reference, the Bench decided to go into the merits of the issue beginning June 8^th. Further, as an interim measure, the Bench directed the continuance in office of additional High Court judges, whose present stint is due to end in near future,  for three months. Further, in view of the need for imminent disposal of the matter at hand, the Bench declared that it would continue with the hearing on the merits of the matter and allotted definite time frames for parties to conclude the arguments: “If a couple of months are taken to complete the matter, there will be high courts with acting chief justices. The administration of judiciary is also important. For four to five months, we cannot keep the judiciary in freezer”.

June 2015:

•     Bench discarded NJAC as “trial and error”:The Bench termed the appointment of judges to the higher judiciary to be “serious business” that was neither a “hit-and-trial business” nor could be left to God. In response, Attorney General Mukul Rohatgi submitted that “hit-and-trial is part of Constitutional evolution. NJAC should be given a try. It is better then the previous models”, referring to the Collegium as being an embodiment of “you scratch my back, I will scratch yours”. He further put forth that “under the Constitution, the power was vested with the Executive. Then under the Collegium system judges started appointing judges in consultation with the Executive. Now the third model has to be tested independently. It is a healthy mix”.
•     Bench condemns excessive transparency: A further reservation of the Supreme Court, as regards the NJAC, came to light with its condemnation of excessive transparency in the new appointment system envisaged by the NJAC. Anticipating its detrimental impact on the appointment method, the Bench declared that “the effect of transparency is no one will give honest adverse report as it will be put to public domain under the Right to Information (RTI). What is the point in transparency if you can’t give honest opinion about the candidate? If a lawyer is not selected and loses judgeship, and if his non-selection is to be subject matter of RTI, his profession will be ruined. Even if he becomes a judge and later on if the adverse comments are put in public domain it will lead to disastrous consequences for him.”
•      Eminent persons: Another pertinent issue came to the fore as the Court questioned the complete absence of provisions in the NJAC Act 2014 as regards the removal of two eminent persons from the six-member NJAC and sought to know, from the Government, whether there was any scope for judicial review of their selection.

The Attorney General put forth the Centre’s stand by conveying that the Parliament, in discharge of its functions, may make such law or rules as may prescribe the procedure for the same. Referring to provisions in the General Clauses Act, he added, “Whoever appoints a person, can remove him. In this case, the troika (the PM, CJI and Leader of Opposition) has the discretion. It should be left to its discretion…All this is in the realm of academic discussion. It NJAC has not started working. Even rules have not been framed”.

•       Revival of Collegium system: Speculating the potential impact in the event of conclusion of the ongoing proceedings against the validity of the NJAC, the Bench observed that the Collegium system of appointing judges to the higher judiciary would stand revived if it struck down the NJAC Act and the associated 99^th Constitutional Amendment Act. This remark lay in rejection of Solicitor General  Ranjit Kumar’s contention that the Court had no power to revive the all-judges Collegium, scrapped by Parliament.  It was his proposition that if the Bench quashed the NJAC Act and the amendment, there would be a “hiatus or vacuum,” necessitating Parliament’s intervention to enact a new law for the appointment of judges. Reviving the Collegium would amount to legislation, which was in the jurisdiction of Parliament, not the Supreme Court. The government maintained its stand to the effect that the collegium system is “dead and buried forever” and it cannot be revived even if the Constitution Bench quashes the proposed NJAC.
•      Debate in State Assemblies: The constitutional Bench, headed by Justice J.S. Khehar, voiced skepticism as the Centre and Gujarat said that the NJAC was the “will of the people” and a product of unanimous public and legislative support. Rebutting the government’s submissions stating that 20 State Assemblies have ratified the Constitutional Amendment and that the “whole nation” wanted the NJAC, the bench challenged the government: “Was there any debate in the Gujarat Assembly or you just passed it without discussion?” It is pertinent to note that the judiciary stands prohibited, by constitutional mandate, from inquiring into such proceedings: the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedurevi, deliberation as to a bill (and the extent thereof) falling within the ambit of the  term “procedure”.

The proceedings as regard the constitutionality of the NJAC are ongoing before the said five-judge bench, the central question being that of independence of the judiciary vis-a-vis a balanced role of the executive and the judiciary in making judicial appointments.