The judges appointment ruling: A step backwards

I will preface my approach by quoting  Justice Harlan of the US Supreme Court. While addressing a group of law students, this is what he said: “I want to say to you…that if we do not like an Act of Congress, we do not have much trouble to find grounds for declaring it unconstitutional.”

This is exactly what has happened in the present case. The judges were deciding on an issue relating to their own powers and jurisdiction. It was an issue which would place the judges in a position of superiority not only over the executive, but over Parliament; and not only over Parliament in its normal exercise of legislative power, but a Parliament exercising the organic power of amendment of the Constitution.

What is unique and remarkable in the present case is that the entire Lok Sabha and the entire Rajya Sabha passed the constitutional amendment and the National Judicial Appointments Commission (NJAC) Act unanimously, with the dissent of just one member. The will of the people, therefore, jettisoned the collegium system and desired that there should be a more balanced system through which the executive and civil society would also have a voice. The Constitution Bench was not prepared to accept this.

Let us first look at the intention of the founding fathers. Article 124, which is the one in issue, specifically confers the power of appointment on the President, that is, on the executive. It is clear that the power of appointment was vested by the founding fathers in the executive, headed by the President, on the aid and advice of the Council of Ministers.
The Chief Justice of India and the judges of the Supreme Court are only consultees, whose opinion had to be given due weight by the Council of Ministers. It was the President who had to decide as to who among the judges of the Supreme Court and the High Courts should be consulted by him.

It should be remembered that so far as India is concerned, we have adopted the Westminster system of government where all the three departments of government are equal and coordinate. None among them would have a primacy over the other. The founding fathers had to decide regarding each action or function under the Constitution, such as the organ of the state on which the power will be vested. Under Article 124, that power was vested in the executive.

The judges, however, did not accept the Constitution as it stood or its plain words and meaning. In the first instance, they sought to read ‘consultation’ as ‘concurrence.’ Later, they overruled a seven-judge bench decision of the Supreme Court, which held that primacy was not with the CJI but with the executive and conferred that primacy on the CJI.

In a later judgment, holding that the CJI should not be entrusted with the entire responsibility by himself, the Bench of nine judges created the collegium of five judges. The net result was that Article 124 was, virtually, turned on its head. This would remind me again of a statement by Justice Charles Evans Hughes of the Supreme Court, who later became Chief Justice of the United States: “We are under a Constitution, but the Constitution is what the judges say it is.”

The Memorandum of Procedure for appointment of judges has been referred to in the majority opinion of the Supreme Court. But a careful perusal of the Memorandum of Procedure, with regard to appointment of Supreme Court judges, would show that the executive had no voice at all.

On the other hand, a proposal would emanate from the collegium and the appointment would be forwarded to the law minister, who would in turn forward it to the prime minister, who would advise the President. It was open to the President to return the nomination once, but if it was re-sent by the collegium, he was bound to issue the warrant of appointment, irrespective of any reservation whatsoever of the Council of Ministers on the basis of information in their possession.

Article 124 has, thus, lost its original, pristine character by a series of interpretations by the judges who gradually rewrote it in its entirety and effectively transferred the power of appointment from the executive to the judiciary.

The 99th amendment

The 99th amendment to the Constitution had brought about a balance where three judges would decide on the appointments, along with the minister for law and justice as well as two eminent persons. The ‘eminent persons’ would represent civil society and would also bring about transparency, as their presence would ensure that there would be no quid pro quo between the judges and the minister.

A veto is given to two among them, and their veto would not result in an impasse or a stalemate, as, always, another person could be thought of and considered by the Commission. One must also remember that the NJAC was introduced to bring about transparency to the appointment process, instead of the collegium making its own decisions behind closed doors.

The creation of the collegium through the process of judicial adjudication has done great harm to the checks and balan-ces provided by the Constitution. The ultimate result is not the preservation of the independence of the judiciary, but the sacrifice of accountability and transparency. 

It is unfortunate that when every other country in the world gives a major role to the executive in the matter of appointment of judges to the higher judiciary, and in some cases, the exclusive right of appointment, India has taken a step backwards and has transferred the power exclusively to the judicial wing of the state.

This is wholly contrary to the democratic basis on which the Constitution rests and is wholly opposed to the separation of powers, where each branch of the government is equal and coordinates with regard to its functioning.

(The writer is Senior Advocate, Supreme Court)