Collegium vs NJAC: A classic case of conflict

Former Chief Justice of US Supreme Court Charles Evans Hughes said “We are under a Constitution, but the Constitution is what the judges say it is”. In an answer to perhaps one of the most difficult questions of law, a five-member Constitution Bench of the Supreme Court through a landmark judgment in SCOARA v UOI (4th Judges Case) while quashing the National Judicial Appointments Commission (NJAC) Act, 2014, and the 99th Constitution Amendment, 2014, reiterated the words of Justice Hughes by holding judiciary’s primacy in appointments and transfers of judges over executive.

The judgment – stretching over 1,000 pages – is a compilation of five opinions written in order of seniority at bench with a total of 817 citations. It deals with four main issues – recusal of Justice Jagdish S Khehar (declined – Pg 16, 473 & 894), reference to a larger bench (declined), review of 2nd and 3rd Judges Cases (declined) and constitutional validity of the NJAC (held unconstitutional). Justices Khehar, Madan B Lokur, Kurian Joseph and A K Goel quashed the NJAC and made collegium system re-operative while Justice Chelameswar J agreed on refusal to recuse and on non-examination of NJAC Act but dissented on validity of the 99th Amendment and collegium. It is, therefore, incorrect to say that Justice Chelameswar has completely dissented as has been largely reported.

While drafting ‘judicial provisions’, the lengthiest Constituent Assembly debates were on independence of courts, powers of Supreme Court and judicial review. The task of framing provisions for these was entrusted to an ad hoc committee of five distinguished jurists – B N Rao, Munshi, Mitter, Vardachariar and Ayyar. Chief Justice of  then Federal Court, H J Kania wrote a letter to Nehru stressing on independence of judiciary.

Subsequently a ‘Justice’s Meeting’ was conducted between federal court judges and Chief Justices of all high courts to submit recommendations. The Drafting Committee framed draft Articles 103 and 193 which were adopted finally as present Articles 124 and 217 for appointment of judges to Supreme Court and high courts.

The dramatic and tragic appointments done by the Indira Gandhi government in view of developing a ‘committed judiciary’ (Appointing A N Ray J as CJI by superseding Shelat, Hegde and Grover JJ and Beg J as the CJI by superseding Khanna J) triggered the thought process that a change was required in appointments for independence of judiciary.

In Samsher Singh (1974), Supreme Court held ‘consultation’ in Articles 217 and 124 as to confer primacy to the Chief Justice of India. In Sankalchand Himmatlal Sheth (1977), it was held that ‘consultation’ under Art 222 meant taking mandatory (but not binding) opinion of the Chief Justice in matters of transfer. In S.P.Gupta v UOI (1981 – 1st Judges Case, 4:3) it was written that the interpretation supplied to ‘consultation’ by Sankalchand stretched to Article 124 and 217 and CJI had no primacy as all constitutional functionaries are equal. Appointment of judges was termed to be an executive function.

Correctness of 1st Judges Case was doubted for the first time in Subhash Sharma v UOI (1991). Two years later, SCAORA v UOI (1993 – 2nd Judges Case, 7:2) overruled the 1st Judges Case and held that the Chief Justice of India has primacy in judicial appointments by interpreting ‘consultation’ as ‘concurrence’. It also established the system of 1+2 and 1+4 Collegium system for appointments. In Special Reference (1998 – 3rd Judges Case), affirmed the 2nd Judges Case and imposed significant procedural constraints on the Chief Justice and vested wide powers in the collegium.

On a purposive analysis of the judgment, it attracts both bouquets and brickbats. This five-judge bench was bound by the nine-judge bench in 2nd and 3rd Judges. The doctrine of ‘stare decisis’ commands that for complete adjudication, the matter shou-ld have been heard by a larger bench. Moreover, collegium is undoubtedly a system beyond judicial review and evidently lack of transparency did not allow competent judges due elevation to the Supreme Court.

A malleable democracy
On the other hand, legislative encroachment at the very threshold of appointment procedure through a constitutional body like the NJAC will undeniably hinder independence of judiciary which is a basic feature of our Constitution.

Ours is a malleable democracy. The three organs of state not only participate in each other’s activities but also perform the same as and when required. The judiciary has over the years been forced to assume many roles due to successive corrupt and incompetent governments.

The judgment does not challenge legislative potential but impliedly traces that the government cannot be given powers to play around with judiciary. Montesquie propounded the theory of ‘direct will’ and ‘indirect will’. The direct will of subjects are the elected representatives in whom they entrust the power of governance. The indirect will is the enforcement agency or judiciary. In a slugfest of supremacy, the two wills are at eternal conflict with each other.

It is here where our democratic set up is unique. The Constitution book grants a very large power of judicial review to the Supreme Court which crafts an invisible crown over its head quoting from Mahabharata: “Yato Dharmastato Jaya”. The judgment follows what the Constitution commands but declines what the direct will expects!

The bench on Tuesday started hearing on the matter to discuss suggestions to improve the collegium system. Interestingly, two judges concurring with the majority judgment attested the fact that collegium is flawed. Kurian J at Pg 924: “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.” and Goel J at Pg 990-991, 1021.

(The author is an advocate and was closely associated with two parties to the case)