Aftermath of National Judicial Commission

The reason for this opening paragraph is to equip the reader to plan his order of reading. Invariably, it happens that, each of the reader is at different level of maturity and has different priorities at different times.

This article is updated upto 28 October 2015.

This article is structured under following headings.

Background-: A brief about the topic

Why this article-: Whether the judgement is correct or otherwise?

My Personal Conclusion-: The answers to the questions framed

A few this to know : Setting the context right

Executive summary : List of various arguments taken before the bench

Analysis-: Arguments put forth before and dealt with by the SC.

Background-:

1. An article on the issue of National Judicial Commission as authored by Advocate Anand Mishra is carried by taxguru.in at https://taxguru.in/corporate-law/sc-strucks-njac-unconstitutional-njac-collegium.html

2. This is an article which is in furtherance of the said above article. The above article is a useful start to read this article. The audience may find it useful to see the debate on times now at https://www.youtube.com/watch?v=tD2GNu556aA

3. Earlier, there was a collegium system of appointing the judges. It was partially the outcome of enforcement of emergency.

4. There is a wide perception that judges are appointing judges and are afraid of letting it go.

5. It refers to pro-verb Power corrupts, absolute power corrupts absolutely AND Fear of loosing power also corrupts absolutely.

6. It was felt that, the collegium system lacks objectivity, responsibility and transperancy.

7. To remove above problems,

• Parliament vide an Act namely the Constitution (Ninety-Ninth Amendment) Act, 2014 amended constitution to have requisite powers to amend the process of appointment of Judges.

• Later, exercising these powers, it passed an act namely the National Judicial Appointment Commission Act, 2014 to set up a commission for appointment of judges.

8. A series of writs were filed requesting the judiciary to consider the consider the validity of the said change.

9. A series of questions were posed out of which THE MOST important question is whether the said change will abrogate independence of judiciary.

10. The bench answered the question as YES and has struck down the validity of both the Acts.

Why This Article-:

11. Irrespective of in which category a readers falls, one will appreciate that the judgement carries rich information of

• historic phenomenon and experiments that have taken place
• intellectual gymnasium of though processes and
• experiences / scenarios in other countries
  

12. In my opinion, this matter is of extreme importance because it is only the 6^th time in the history of India that a constitutional amendment has been held ultra virus.

13. The purpose is to instigate a thought process so as to enable the audience form an opinion on this vexed issue.

My Personal Conclusion-:

14. In my personal opinion, the judgement of Justice Jurian Joseph correctly reflects the sentiments which I had. Needless to say, the whole of the judgement is relevant.

15. I am particularly disturbed by the following observation of Jagdish singh khehar.

205. In conclusion, it is difficult to hold, in view of the factual position expressed above, that the wisdom of appointment of Judges, can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance. In our considered view, the present status of the evolution of the “civil society” in India, does not augur the participation of the political-executive establishment, in the selection and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another.

16. As per the judgement, a hearing is scheduled on 3-November-2015, to duscuss appropriate measures to improve the current collegium system.

17. As opined by Justice R M Lodha, [former CJI] there are 3 main flaws

• Lack of Transparency
• Lack of expert body to select the judges
• Indifferent approach of executives

18. I really hope that judiciary will take concrete steps to remove the flaws in the collegium system.

A few things to know

19. While drawing the conclusion, each of the judges has discussed following topics.

1st 2nd and 3rd judges case	The system of collegium got evolved and matured through these judicial pronouncements. Second judges case ni 1998 is of utmost significance. In the said case, the SC ruled that the word consultation be interpreted as concurrence.
Kesavanand bharati,	Separation of powers of executive body, legislative body and judiciary forms integral part of Basic structure of constitution.
Constituent Assembly	It refers to the process of drafting constitution of India and the discussion on the issue of appointment of judges in higher judiciary. Especially the discussion on process of appointment and contribution by , Dr Ambedkar
Discussion among MP / MLAs	It has re-produced the discussion that took place during the process of passing of this bill and those in state assemblies while ratifying the same.
Judicial philosophy	Various writings on various philosophies of appointment of judges. It includes writings / interviews by authors both, from India and outside India.
Scenario in foreign countries	Each of the judge has, extensively, referred to systems of appointment of judges in various coutries.
Earlier attempts of change in collegium system	The judgement contains a History of unsuccessful attempts of changing the collegium system alongwith a commentary on the political scenario pre-pondering at that time.
Collegium system	characteristics of collegium system and experiences thereof
about NJAC system	characteristics about NJAC system
Various commi- ttees in this aspect	Sapru Committee, Ad hoc Committee on the Supreme Court, Provincial Constitution Committee, National Commission to Review the Working of the Constitution. Various reports of law commission of India namely 14th, 80th, 121th

20. Irrespective of differing views, there was a clear consesnsus among all the concerned on following issues

• Basic structure of Constitution of India can not be disturbed even by Parliament of India
• Independent Judiciary is one of the components of basic structure of Constitution

21. I have re-produced the judgement of Justice Joseph Kurian. I have not changed [not dared to] even a single word. I have only para phrased the judgement for better understanding [of myself]. I have put paragraph headings for ease in understanding.

Entia Non Sunt Multiplicanda Sine Necessitate (Things should not be multiplied without necessity). This is the first thought which came to my mind after reading the judgments authored by my noble brothers Khehar, Chelameswar, Lokur and Goel, JJ., exhaustively dealing with the subject. The entire gamut of the issue has been dealt with from all possible angles after referring extensively to the precedents, academic discourses and judgments of various other countries. Though I cannot, in all humility, claim to match the level of such masterpieces, it is a fact that I too had drafted my judgment. However, in view of the principle enunciated above on unnecessary multiplication, I decided to undo major portion of what I have done, also for the reason that the judgment of this Bench should not be accused of Bharati fate (His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another709 has always been criticized on that account).

Question before the court

Leaving all legal jargons and using a language of the common man, the core issue before us is the validity of the Constitution 99th amendment. It is to be tested on the touchstone of the theory of the basic structure. The amendment has introduced a new constitutional scheme for appointment of Judges to the High Courts and the Supreme Court.

During the first phase of the working of the Constitution, the Executive claimed an upper hand in the appointment and the Chief Justice of India or the Chief Justices of the High Courts concerned were only to be ‘consulted’, the expression often understood in its literal sense. In other words, the decision was taken by the Executive with the participation of the Chief Justice. This process fell for scrutiny in one of the celebrated decisions of this Court in Samsher Singh v. State of Punjab and another710. In Samsher Singh case (supra), a seven-Judge Bench of this Court, in unmistakable terms, held at paragraph 149 as follows:

“149. … The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making 710 (1974) 2 SCC 831 897 consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India.

In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.” (Emphasis supplied)

This principle, settled by a Bench of seven Judges, should have been taken as binding by the Bench dealing with the First Judges Case which had a coram only of seven. Unfortunately, it held otherwise, though with a majority of four against three. Strangely, the presiding Judge in the First Judges case and author of the majority view, was a member who concurred with the majority in Samsher Singh case (supra) and yet there was not even a reference to that judgment in the lead judgment! Had there been a proper advertence to Samsher Singh case (supra), probably there would not have been any need for the Second Judges Case.

It appears, the restlessness on the incorrect interpretation of the constitutional structure and position of judiciary in the matter of appointments with the super voice of the Executive, as endorsed in the First Judges Case, called for a serious revisit leading to the Second Judges Case. Paragraph 85 of the Judgment gives adequate reference to the background. To quote:

“85. Regrettably, there are some intractable problems concerned with judicial administration starting from the initial stage of selection of candidates to man the Supreme Court and the High Courts leading to the present malaise. Therefore, it has become inevitable that effective steps have to be taken to improve or retrieve the situation. After taking note of these problems and realising the devastating consequences that may flow, one cannot be a silent spectator or an old inveterate optimist, looking upon the other constitutional functionaries, particularly the executive, in the fond hope of getting invigorative solutions to make the justice delivery system more effective and resilient to meet the contemporary needs of the society, which hopes, as experience shows, have never been successful. Therefore, faced with such a piquant situation, it has become imperative for us to solve these problems within the constitutional fabric by interpreting the various provisions of the Constitution relating to the functioning of the judiciary in the light of the letter and spirit of the Constitution.” (Emphasis supplied)

Second Judges case

The nine-Judges Bench in the Second Judges Case overruled the First Judges Case, after a threadbare analysis of the relevant provisions ‘in the light of the letter and spirit of the Constitution’, holding that appointment of Judges to the High Courts and the Supreme Court forms an integral part of the independence of judiciary, that independence of judiciary is part of the basic structure of the Constitution of India, and therefore, the Executive cannot interfere with the primacy of the judiciary in the matter of appointments. Third Judges Case, in 1998, is only an explanatory extension of the working of the principles in the Second Judges Case by institutionalizing the procedure of appointment, introducing the Collegium.

Thus, the structural supremacy of the judiciary in the constitutionally allotted sphere was restored by the Second and Third Judges Cases. Apparently, on account of certain allegedly undeserving appointments, which in fact affected the image of the judiciary, the politico Executive started a new campaign demanding reconsideration of the procedure of appointment.

Current question and agreement with fellow judges-:

It was clamoured that the system of Judges appointing Judges is not in the spirit of the Constitution, and hence, the whole process required a structural alteration, and thus, the Constitution 99th Amendment whereby the selection is left to a third body, the National Judicial Appointments Commission (NJAC). The Parliament also passed the National Judicial Appointments Commission Act, 2014, which is only a creature of Constitution 99th Amendment. The validity of the Act is also under challenge.

‘What is the big deal about it?’, has been the oft made observation of my esteemed brother Khehar, J., the presiding Judge, in the thirty days of the hearing of the case, which included an unusual two weeks long sitting during the summer vacations with the hearing in three different Courts, viz., Court Nos. 3, 4 and 6. When it is held, and rightly so, that there is no requirement for reconsideration of the Second Judges Case, the fate of the case is sealed; there is no need for any further deal, big or small. Though I generally agree with the analysis and statement of law, in the matter of discussion and summarization of the principles on reconsideration of judgments made by Lokur, J. at paragraph comment 263, I would like to add one more, as the tenth. Once this Court has addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for revisit shall not be welcomed unless it is shown that the structural interpretation is palpably erroneous. None before us could blur the graphic picture on the scheme of appointment of Judges and its solid structural base in the Constitution portrayed in the Second Judges Case. This Bench is bound by the ratio that independence of judiciary is part of the basic structure of Constitution and that the appointment of Judges to the High Courts and the Supreme Court is an integral part of the concept of independence of judiciary. And for that simple reason, the Constitution 99th Amendment is bound to be declared unconstitutional and I do so. Thus, I wholly agree with the view taken by Khehar, Lokur and Goel, JJ., that the amendment is unconstitutional and I respectfully disagree with the view taken by Chelameswar, J. in that regard. Since it is being held by the majority that the amendment itself is bad, there is no point in dealing with the validity of the creature of the amendment, viz., the National Judicial Appointments Commission Act, 2014. It does not exist under law. Why then write the horoscope of a stillborn child! However, I would like to provide one more prod. Professor Philip Bobbit in his famous book ‘Constitutional Fate Theory of the Constitution’, has dealt with a typology of constitutional arguments. To him, there are five archetypes: historical, textual, structural, prudential and doctrinal. To quote from Chapter 1:

“Historical argument is argument that marshals the intent of the draftsmen of the Constitution and the people who adopted the Constitution. Such arguments begin with assertions about the controversies, the attitudes, and decisions of the period during which the particular constitutional provision to be construed was proposed and ratified. The second archetype is textual argument, argument that is drawn from a consideration of the present sense of the words of the provision. At times textual argument is confused with historical argument, which requires the consideration of evidence extrinsic to the text. The third type of constitutional argument in structural argument. Structural arguments are claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. The fourth type of constitutional argument is prudential argument. Prudential argument is self-conscious to the reviewing institution and need not treat the merits of the particular controversy (which itself may or may not be constitutional), instead advancing particular doctrines according to the practical wisdom of using the courts in a particular way. Finally, there is doctrinal argument, argument that asserts principles derived from precedent or from judicial or academic commentary on precedent.”

Structural arguments [emphasis given by Justice Joseph]

Professor (Dr.) Upendra Baxi has yet another tool – ‘episodic’, which according to him, is often wrongly used in interpreting the Constitution. To Dr. Baxi, ‘structural’ is the most important argument while interpreting the Constitution. Structural argument is further explained in Chapter 6. To quote a few observations:

“Structural arguments are inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures. They are to be distinguished from textual and historical arguments, which construe a particular constitutional passage and then use that construction in the reasoning of an opinion.”

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“Structural arguments are largely factless and depend on deceptively simple logical moves from the entire Constitutional text rather than from one of its parts. At the same time, they embody a macroscopic prudentialism drawing not on the peculiar facts of the case but rather arising from general assertions about power and social choice.”

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“Notice that the structural approach, unlike much doctrinalism, is grounded in the actual text of the Constitution. But, unlike textualist arguments, the passages that are significant are not those of express grants of power or particular prohibitions but instead those which, by setting up structures of a certain kind, permit us to draw the requirements of the relationships among structures.”

Professor Bobbit has also dealt with a sixth approach – ethical, which according to him, is seldom used in constitutional law. In interpreting the Constitution, all the tools are to be appropriately used, and quite often, in combination too. The three constitutional wings, their powers and functions under the Constitution, and their intra relationship being the key issues to be analysed in the present case, I am of the view that the ‘structural tool’ is to be prominently applied for resolving the issues arising in the case. In support, I shall refer to a recent judgment of the U.S. Supreme Court in State v. Arizona Independent Redistricting Commission711, decided on 29.06.2015. It is an interesting case, quite relevant to our discussion. U.S. Constitution Article I, Section 4 ,Clause 1 (Election Clause) reads as follows:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” 711 Manu/USSC/0060/2015 Arizona Constitution, Article IV, Part 1, to the extent relevant, reads as follows:

“Section 1. (1) Senate; house of representatives; reservation of power to people. The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.”

Thus, under Section 1, people are involved in direct legislation either by the process known as ‘initiative’ or ‘referendum’. While the initiative allows the electorate to adopt positive legislation, referendum is meant as a negative check. Popularly, the process of initiative is said to correct ‘sins of omission’ by the Legislature while the referendum corrects ‘sins of commission’ by the Legislature. In 2000, Arizona voters adopted Proposition 106, an initiative aimed at the problem of gerrymandering. Proposition 106 amended Arizona’s Constitution, removing redistricting authority from the Arizona Legislature and vesting it in an independent commission, the Arizona Independent Redistricting Commission (AIRC). After the 2010 census, as after the 2000 census, the AIRC adopted redistricting maps for congressional as well as state legislative districts. The Arizona Legislature challenged the map which the Commission adopted in 2012 for congressional districts arguing that the AIRC and its map violated the “Elections Clause” of the U.S. Constitution. Justice Ginsburg and four other Justices formed the majority and held that the independent commission is competent to provide for redistricting. To quote the main reasoning:

“The Framers may not have imagined the modern initiative process in which the people’s legislative powers is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power.” However, Chief Justice Roberts and three other Justices dissented. Chief Justice Roberts pointed out that the majority position has no basis in the text, structure, or history of the Constitution and it contradicts precedents from both Congress and the Supreme Court. The Constitution contains seventeen provisions referring to the ‘Legislature’ of a State, many of which cannot possibly be read to mean ‘the people’. To quote further:

“The majority largely ignores this evidence, relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy. Nowhere does the majority explain how a constitutional provision that vests redistricting authority in “the Legislature” permits a State to wholly exclude “the Legislature” from redistricting. Arizona’s Commission might be a “noble endeavor” although it does not seem so “independent” in practice but the “fact that a given law or procedure is efficient, convenient, and useful … will not save it if it is contrary to the Constitution” INS v. Chadha, 462 U.S. 919, 944 (1983).”

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“The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded.”

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“The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. See Vieth v. Jubelirer, 541 U.S. 267 (2004); ante, at 1. But our inability to find a manageable standard in that area is no excuse to abandon a standard of meaningful interpretation in this area. This Court has stressed repeatedly that a law’s virtues as a policy innovation cannot redeem its inconsistency with the Constitution.” (Emphasis supplied)

While wholly agreeing with the historic, textual, prudential and doctrinal approaches made by Khehar and Lokur, JJ., my additional stress is on the structural part. The minority in Arizona case (supra), to me, is the correct approach to be made in this case. Separation of powers or say distribution of powers, as brother Lokur, J. terms it, is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each, branch which Khehar, J. has stated as ‘core functions’, and which I would describe as powers central. There shall be no interference on powers central of each branch. What the Constitution is, is only for the court to define; whereas what the constitutional aspirations are for the other branches to detail and demonstrate. As held in Samsher Singh case (supra) and the Second and Third Judges Cases, selection of Judges for appointment in High Courts and the Supreme Court belongs to the powers central of the Judiciary and the permissible checks and balances are provided to other branches lie in the sphere of appointment. If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the Constitution. Once the constitutional structure is shaken, democracy collapses. That is our own painful history of the Emergency. It is the Parliament, in post-Emergency, which corrected the constitutional perversions and restored the supremacy of rule of law which is the cornerstone of our Constitution. As guardian of the Constitution, this Court should vigilantly protect the pristine purity and integrity of the basic structure of the Constitution. Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud. According to Justice Roberts, court has no power to gerrymander the Constitution. Contextually, I would say, the Parliament has no power to gerrymander the Constitution. The Constitution 99th amendment impairs the structural distribution of powers, and hence, it is impermissible. One word on the consequence. Though elaborate arguments have been addressed that even if the constitutional amendment is struck down, the Collegium does not resurrect, according to me, does not appeal even to common sense. The 99th Amendment sought to ‘substitute’ a few provisions in the Constitution and ‘insert’ a few new provisions. Once the process of substitution and insertion by way of a constitutional amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive. That alone can be the reasonably inferential conclusion. Legal parlance and common parlance may be different but there cannot be any legal sense of an issue which does not appeal to common sense.

Flaws in current collegium system-:

All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. To me, it is a curable situation yet.

There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems. The Second and Third Judges Case had provided effective tools in the hands of the Executive to prevent such aberrations. Whether ‘Joint venture’, as observed by Chelameswar, J., or not, the Executive seldom effectively used those tools. Therefore, the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard.