In the Supreme Court of India Civil Original Jurisdiction Case No. Writ Petition (Civil) no. 13 of 2015 Petitioner Supreme Court Advocates on Record Association Respondent Union of India Bench Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel
It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution. The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court. A High Court collegium is led by its Chief Justice and four other seniormost judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium. Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium. The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
1. The case is based on the independence of the judiciary as the part of basic structure of the Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’ which is essential for the preservation of the democratic system and the separation of powers which is adopted in the constitution with the directive principles of ‘Separation of judiciary from the executive’.
2. In early 2015, the Supreme Court Advocates-on-Record Association and Senior Advocates filed writ petitions before the Supreme Court challenging the constitutionality of the Ninety-ninth Amendment and the NJAC Act.24 The petitions alleged, inter alia, that the NJAC violated the basic structure of the Constitution by compromising the judiciary’s independence.
3. The first judge’s case (S.P.Gupta v. Union of India AIR 1982 SC 149) gave the primacy to the executive in appointments to the higher judiciary, declaring that the advice of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The results were not good enough to suggest that we should have an executive dominant system of appointments
4. In 1991 the question of judicial appointments came for consideration before the SC in Subhash Sharma v. Union of India (1991 Supp (1) SCC 574), the 3 judges bench opined that the majority view, in the First Judges case, should be considered by a larger bench.Thus the court in that judgment itself affirmed the idea of a judicial commission for the appointment of judges.
5. In 1993 the 9 judges bench considered the questions referred to it in the second judge’s case (Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268). The majority verdict gave back CJI’s power over judicial appointments and transfers. It says the CJI only need to consult two senior-most judges.
6. To clarify the position the then President K.R. Narayanan sought a reference from the SC in the third judge’s case(Special Reference No.1 of 1998 AIR 1999 SC 1), the Supreme Court laid down that the CJI should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers. The crux of the second and third judges case is that the Judiciary should have primacy.
7. In 2000 the Venkatachaliah Commission was set up by NDA government to review the working of the constitution. In its report the commission recommended the formulation of a judicial commission comprising of:
(a) The Chief Justice of India: Chairman
(b) Two senior most judges of the Supreme Court: Member
(c) The Union Minister for Law and Justice: Member
(d) One eminent person nominated by the President after consulting the Chief Justice of India: Member.
8. This report was shortly followed by The Constitution (Ninety Eighth Amendment) Bill, 2003 introduced by the NDA government which aimed at establishing a National Judicial Commission according to the suggestions of this commission but before this bill could be passed the Lok Sabha dissolved.
9. In 2013 the UPA government came up with The Constitution (120th Amendment) Bill, 2013 which provided for a six member Judicial Appointments Commission consisting of three judicial and three non-judicial members, thus giving equal say to both and primacy to none.
10. In 2014 the NDA government introduced The Constitutional (121st Amendment) Bill, which was subsequently passed by both houses of the parliament, ratified by 16 state legislatures and assented by the President; NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.
11. By this NJAC case The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 have been declared null & void by the court. The 2014 amendment has been struck down as it is against the principles of ‘separation of powers’ and ‘independence of judiciary’ and thus violative of the basic structure of the constitution to which I cannot agree more.
12. The NJAC Judgment, issued on October 16, 2015, contains five opinions and is over one thousand pages long. The Court split four to one, with four Justices—Khehar, Lokur, Goel, and Joseph—in the majority, and Justice Chelameswar in the dissent.
Whether The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 are violative of the ‘Principles of Separation Of Powers’ or not?
First, the petitioners raised an objection to Justice Khehar’s participation in the litigation. As the third most senior Justice excepting the Chief Justice, Justice Khehar was a member of the “collegium”—the extant system in which senior Supreme Court Justices have the final say on appointments to the bench. The petitioners argued that Justice Khehar could not be impartial since he exercised “significant constitutional power” in the judicial appointments process that was being challenged in this litigation. In a brief order, Justice Chelameswar dismissed this claim, noting that if petitioners’ argument was taken to its logical end, every Justice of the Supreme Court would be disqualified because any of them could potentially serve on the collegium.
Second, respondents, the Union of India, filed a motion asking the Court to review the validity of two precedents that were directly relevant to the case: the Second and Third Judges’ Cases. Justice Khehar, writing for the Court, denied this request in the first part of his opinion, prior to reaching the merits.
The court has struck down The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014, declaring them to be unconstitutional and void with a majority of 4:1. The court has also rejected the respondent’s plea for reference to a larger bench for the reconsideration of the Second and Third Judge’s cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively]. The collegium system for appointment and transfer of judges has been restored.
Analysis of the Judgement
A few key holdings emerged from the NJAC Judgment. First, the Court held that the Constitution mandates judicial primacy in appointments. Second, based on the constitutional text and longstanding practice, the Court held that judicial primacy is not only constitutionally required, but is also part of the unamendable basic structure because it is integral to the independence of the judiciary. Third, and as a consequence of the prior holdings, the NJAC was held unconstitutional for violating the requirements of judicial primacy and judicial independence.