The Supreme Court AOR Association & Anr. v. UOI decision, often known as the NJAC ruling, has sparked discussion among all the democratic institutions. This decision concerns both the independence of the Indian Judiciary as well as the nomination of judges by other judges. The 99th Amendment was deemed illegal, and the "National Judicial Appointments Committee" (NJAC) rendered unconstitutional & void by a constitutional bench comprising of 5 judges of the Supreme Court with a 4:1 ratio.
This decision does not represent judicial overreach since the upper Judiciary has the authority to evaluate any legislative measure whose constitutionality has been questioned. In the present case it was argued by the petitioner that the 99th constitutional Amendment is violative of the basic structure of the Constitution of India.
The recommendation for the elevation of judges to the High Courts & Supreme Court, along with the recommendations for the transfer of Chief Justices and Judges from one High Court to another, were the main issues that were brought before the Honourable Supreme Court.
According to Article 124, judges of the Supreme Court are appointed, and as per Article 217, judges of the High Court are selected. The 2014 NJAC Act was approved by the legislature. NJAC was prepared to abolish the Collegium system.
The NJAC comprised of the:
CJI (ex officio member),
Two senior-most justices of the SC (ex officio),
the Union Minister of Law and Justice (ex officio),
and two eminent persons to be nominated by a committee comprising the PM, the CJI and the LOP.
What led to the formation of Collegium?
In the case of S.P. Gupta v. President of India, also known as the First Judges Case, a 7-judge bench decided by a vote of 4:3 that the word "consultation" does not equate to "concurrence" when referring to the appointment of judges under Articles 124(2) and 217(1) of the Indian Constitution. Therefore, the President (Executive) and not the CJI (Judiciary) would have the "ultimate authority" of decision in a dispute over choosing judges. The SC again ruled that judges may only be transferred from one High Court to another in public interest cases and only after consulting with the CJI. The Court held that the Executive would be given priority over the CJI & CJI's role would be limited to that of an advisor; this decision by the apex court was viewed as a "threat to the independence of the judiciary". Making it a situation where the Supreme Court acted contrary to its interests.
Hearing petitions submitted to the SC in 1993 regarding the vacancies of judges on the SC and High Courts, a three-judge bench noted that a larger bench should revisit the First Judges Case. The Second Judge case was heard by a constitutional bench comprising nine judges, overturning the First Judge case by a 7:2 majority. It was decided that the CJI's opinion, rather than the President's, would have precedence in a case of a disagreement when considering the appointment of judges.
It was said that "consultation" actually referred to "concurrence." Hence, the collegium system was established as an additional safeguard for the same. This approach ensured that the Judiciary had the upper hand in transfers & appointments by requiring the CJI and two of the most senior judges to consult before appointing a judge. In the event of a disagreement, the Executive had the option to request that the Collegium rethink its recommendations; however, if the Collegium refused to do so after being requested to do so, the Executive would have no other option but to proceed with the appointment.
In the Second Judge case, a power balance between the Executive and the Judiciary was sought. The verdict, however, gave the Supreme Court the advantage in terms of appointments and transfers.
The Third Judges Case, also known as the Presidential Reference to the SC, was issued in 1998 and questioned the definition of the word "consultation" under articles 124, 217, and 222 of the Constitution.
The Collegium was increased by the SC to 5 members, including the CJI and his four most senior justices. The CJI will not propose the opinion to the government, even if two judges are against it.
The NJAC was prepared to abolish the collegium system, which appoints the judges of higher courts, following the introduction of the 99th Constitutional Amendment act in the Parliament.
In the constitution, new articles 124(A), 124(B), and 124(C) were inserted.
Issues Raised in the Case
The NJAC Act was passed by Parliament and obtained the President's approval on 31 December 2014. The same was also implemented beginning on 13 April 2015. The Amendment above was contested in a number of petitions that were all heard together.
In this scenario, there are primarily three concerns at play:
How judges of the High Court and Supreme Court should be chosen?
Considering that the 99th Amendment violates the basic structure of the Constitution, is it ultra vires of the Constitution?
The validity of judicial review in this instance?
Judgment & Analysis
A constitutional bench (5 members) ruled against the NJAC act, striking down the 99th constitutional Amendment by a vote of 4:1.
CJI JS Khehar, Justice Lokur, Justice Kurien Joseph and Justice AK Goel unanimously declared the 99th constitutional Amendment as unconstitutional & void. They shared the belief that the Judiciary's position as the primary authority in appointing judges cannot be compromised. According to the ruling, giving NJAC the authority to appoint & recommend judges in the SC & High Courts under article 124(A) and giving Parliament the authority to regulate the selection process and establish the method are both unconstitutional because they go against the fundamental principles of the Constitution and pose a risk to the "independence of the judiciary" in India.
In addition, it is maintained that even if the doctrine of basic structure is not used to determine whether the parliament statute is valid or not, the independence of the Judiciary and the application of the law are provisions of articles 14, 19, and 21 of the Constitution, respectively, and their lack would have an impact on the aforementioned fundamental rights. Therefore, making it evident that the NJAC Act will be overturned. Additionally, if an amendment contradicts the fundamental principles of the Constitution, the SC of India has the authority to examine/review the Amendment.
Justice J. Chelameswar, one of the five members of the Bench, disagreed with the majority ruling and issued a vehement dissent against the collegium system, which the decision essentially reinstated. Justice Chelameswar was the only member of the Bench to support the NJAC, claiming that it was against the democratic norms of the nation to completely exclude the GOI from the appointment process.
Highlights from his judgment
"Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks."
The idea that the "primacy of the judiciary" in selecting judges is a basic aspect of the Constitution "is empirically flawed."
In certain instances, the SC Collegium "retraced its steps" after turning away a name that the HC Collegium had recommended, which allowed for a considerable degree of "speculation."
"There is no accountability in this regard. The records are absolutely beyond the reach of any person, including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country."
He continued, "To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy."
"Attorney General of India Mukul Rohatgi was correct in his submission that the exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in Constitutional theory."
"For all the reasons mentioned above, I would uphold the Amendment. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the Act," said Justice Chelameswar.
The decision maintains an extra-constitutional body created by the SC itself to further its own objectives in place of a system that was legitimately implemented by a Parliament that was duly elected by the people. Additionally, the ruling falls short of providing a sufficient response to the primary query at the heart of the dispute: how is judicial supremacy in selecting members of the higher Court a part of the basic structure of our Constitution? As a result, the choice takes on a wholly political nature. It is dominated by anti-democratic sentiment rather than constitutionalism.
The Constitution nowhere mentions Collegium. Whatever perspective one chooses to take on the Collegium - whether with scorn or reverence—it is undeniable that the Constitution makes no mention of such a system. Unlike other of our fundamental rights, articles 124 and 217 do not use abstract language that calls for interpretation. Therefore, this anointed Collegium was purely a product of the Second Judges Case.
Alladi Krishnaswamy Iyer cautioned against giving the Court unrestricted authority during discussions of the Constituent Assembly (CA) since he thought this might lead to the development of a super-legislature. In the Second Judges Case, the Supreme Court successfully rewrote the Constitution to establish a body which is self-serving in nature and usurped the authority of both the Executive and the legislative branches. In many respects, the 99th Amendment's passage was meant to address this disparity; it was Parliament's attempt to reclaim some of the space it had previously occupied in our Constitution.
Justice Khehar, in his judgment, fails to demonstrate how the Constitution's basic structure will be harmed by eliminating judicial preeminence in judicial appointment decisions. The learned judge informs us that the word "consultation" in Articles 124 and 217 indicates "concurrence" based on the ruling in the Second Judge Case. It is not logical to conclude from this conclusion that "concurrence" is required in order to preserve an independent judiciary and is thus a necessary component of the Constitution.
A fair understanding of the Second Judges Case would reveal that Justice Verma's majority judgement makes no express conclusion that the basic structure doctrine of the Constitution includes the supremacy of judicial say in selecting members for the SC & the High courts. It's probable that the Supreme Court thought that by giving such precedence, the Court would become more independent at the time. Nevertheless, the Court did not believe that this was the sole means of preserving the independence of the Judiciary. It is thus erroneous for Justice Khehar to draw the conclusion that the elimination of the collegium system undermines judicial independence and violates the basic structure doctrine of the Constitution by counting on the Second Judges Case.
The majority views of the other judges are likewise disorderly, and as a whole, they have produced an unfavourable outcome. Instead of changing the Constitution's basic structure, the 99th Amendment actually enhanced the checks and balances that were initially incorporated into the text. It should have been acknowledged that the passing of the Amendment was a significant step in enhancing our democratic roots.