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Mainstream, VOL LIII No 44 New Delhi October 24, 2015

The Supreme Court Revives Collegiums System — a Fresh Debate Begins

Saturday 24 October 2015, by Rajindar Sachar

The much-awaited judgment of the Supreme Court has held on October 19 that the Constitution (Ninetyninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, are unconstitutional and void and the consequence is that the ‘Collegiums System’ existing prior to the Constitution (Ninetyninth Amendment) Act, 2014 has been declared to be operative.

The Court found fault with the constitution of the National Judicial Appointment Commission, mainly for its composition. The reason given was that if the inclusion of any one of the members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory in its entirety. The Court’s reasoning was that membership of the Chief Justice of India, Chairperson Ex Office and (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC and are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary.

Similarly clause (c) of Article 124A (1) is ultra vires of the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio member of the NJAC. It also held that inclusion of two “eminent persons” as members of the NJAC is ultra vires of the provisions of the Constitution.

Though I must say that the judiciary itself has a lot of explanation for previous bad appointments, the self-exculpatory effort at bad appointment is hard to sustain in view of the information given in 1959 by the Home Minister that in 1950, as many as 211 judges were appointed to the High Courts and these, except one, were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the government had the support of all persons who were connected with this matter.

It is conceded in the judgment that no one can claim the Collegiums System to be perfect. The Court has, however, held that the constitutional amendment alters the basic structure of the Constitution of the India. The Court found objection to the situation where the decision of the Chief Justice of India is, in one sense, made to depend upon the opinion of two members of the NJAC, who may in a given case be the two eminent persons nominated to the NJAC in terms of Article 124A(1)(d) of the Constitution. These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason. In other words, the two eminent persons (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant—that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC, with a veto being conferred on any two unspecified members, without any specific justification. To make matters worse, the President cannot even seek the views of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment.

The role of the Chief Justice is reduced to a very low position because the suitability of a person for appointment as a judge, even if is acceptable to a majority of members of the NJAC, can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons neither of whom represent or purport to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.

The opinion of the Chief Justice of India had ‘graded weight’ or the ‘greatest weight’ prior to the 99th Constitution Amendment Act. But now with the passage of the 99th Constitution Amendment Act and the NJAC Act the Chief Justice of India is reduced to a mere voting statistic. Designating the Chief Justice of India as the Chairperson of the NJAC is certainly not a solace or a solution to downsizing the head of the judiciary.

The Court also found valid the apprehension expressed by some learned counsel appearing for the petitioners that since no guidelines have been laid down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to the NJAC or that their appointment will be politically motivated.

But notwithstanding this, I do not subscribe to the view that the judiciary is a holy cow and an exclusive club for which only the lawyers and judges are competent to take decision. The fear that the presence of a few lay persons will interfere with the independence of the judiciary is misplaced. As the Annual Reports of the Judicial Commission of New South Wales (Ireland) said caustically: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is fundamental principle of our society’s constitu-tional arrangements.”

The Court has finally directed that the result of the declaration that the Collegiums System postulated by the Second Judges Case and the Third Judges Case gets revived. But it has also held that the procedure for appointment of judges, as laid down in these decisions read with the (Revised) Memorandum of Procedure, definitely needs fine-tuning. It has now fixed this matter on November 3, 2015 to consider introduction of appropriate measures, if any, for an improved working of the “collegiums system”.

I may instantly give two immediate sugge-stions which may be considered—one of the most serious self-inflicted wound by the judiciary, namely, of appointing the Chief Justice of the High Court to outside his parent court. The second one is that full publicity be given on website and information to the Bar Associations, the names of those who are being considered and invite if there any objections from the public or the Bar. It would be necessary for the Chief Justices of the respective High Courts and the Chief Justice of India to invite for comments the concerned Bar Associations and to invite the concerned Bar Associations for any information.

I hope that Parliament and the legislatures will show balance and not start an anti-judiciary crusade. This decision should be taken as a constitutionally permissible normal feature.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23 @bol.net.in