SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER V. UNION OF INDIA, (2016) 5 SCC 1

This Case Analysis is written by Danish Chandra during his internship with LeDroit India.

INTRODUCTION:

Before the Three Judges Cases, the appointment of judges to the higher judiciary in India was primarily governed by the relevant constitutional provisions and was largely at the discretion of the executive.

Under Articles 124(2) and 217(1) of the Constitution, the President was required to consult the Chief Justice of India and other judges for appointments to the Supreme Court and High Courts, respectively. However, these consultations were not binding on the executive.

The appointment process was opaque and lacked structured guidelines. The executive, led by the Council of Ministers, had significant leeway in interpreting the consultation process and could potentially disregard the recommendations of the judiciary.

There were concerns about the lack of transparency and the potential for political considerations to influence judicial appointments, undermining the independence of the judiciary.

This ad hoc system, largely controlled by the executive, led to calls for reform and the eventual intervention by the Supreme Court through the landmark Three Judges Cases, which resulted in the establishment of the Collegium system for judicial appointments.

First Judges Case (1981): S.P. Gupta v. Union of India, AIR 1982 SC 149

This case dealt with the issue of judicial appointments and the respective roles of the executive and the judiciary in the process.

The Court held that the executive had the primary role in appointing judges, and the opinion of the Chief Justice was not binding on the government. The Court emphasized the primacy of the executive in judicial appointments.

Second Judges Case (1993): Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

This case revisited the issue of judicial appointments considering the experience following the First Judges Case.

The Court overruled the First Judges Case and established the Collegium system for appointing judges. It held that the Chief Justice of India’s recommendation is binding on the executive, subject to certain safeguards. The Collegium, comprising the CJI and senior-most judges, would initiate the proposal for appointment.

Third Judges Case (1998): Special Reference Case No. 1 of 1998, (1998) 7 SCC 739

 This case dealt with the Memorandum of Procedure for the Collegium system and the role of the executive in judicial appointments.

The Court refined the Collegium system and laid down specific guidelines for the appointment process. It held that the Collegium’s recommendation should be given due weight by the executive, but the executive could return the recommendation for reconsideration if there were cogent reasons. The Collegium’s reiterated recommendation would be binding on the executive.

The Three Judges Cases played a crucial role in shaping the judicial appointment process in India. While the First Judges Case gave primacy to the executive, the Second and Third Judges Cases established the Collegium system, with the judiciary having the primary role in recommending appointments, subject to certain safeguards and executive oversight.

FACTS OF THE CASE:

The controversy surrounding the appointment of judges to the higher judiciary in India had been a long-standing issue, with concerns raised about the lack of transparency and accountability in the existing Collegium system. The Collegium system, which evolved through judicial precedents, gave primacy to the Chief Justice of India and a few senior-most judges of the Supreme Court in recommending appointments and transfers of judges.

In response to the perceived shortcomings of the Collegium system, the Narendra Modi-led NDA government introduced the Constitution (Ninety-Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. These legislative measures aimed to establish a new body, the NJAC, to replace the Collegium system for the appointment and transfer of judges to the higher judiciary, including the Supreme Court and High Courts.

The NJAC was envisaged as a broad-based body comprising six members: the Chief Justice of India (Chairperson), two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the Lok Sabha. The inclusion of the Law Minister and the two eminent persons nominated by the executive raised concerns about potential executive interference in judicial appointments.

The Constitution (Ninety-Ninth Amendment) Act, 2014, and the NJAC Act, 2014, were challenged in the Supreme Court by the Supreme Court Advocates-on-Record Association and other petitioners. The petitioners argued that these measures violated the independence of the judiciary, which is a core principle of the Constitution, and undermined the primacy of the judiciary in the appointment process.

ISSUES INVOLVED:

•  Whether the Constitutional Amendment and the NJAC Act are constitutional and valid.
• Whether the NJAC Act violates the independence of the judiciary and the basic structure of the Constitution by giving excessive powers to the executive in the appointment of judges.
• Whether the NJAC Act can effectively replace the Collegium system for judicial appointments while maintaining the delicate balance between the executive and the judiciary.

CONTENTIONS FROM BOTH PARTIES:

PETITIONERS’ CONTENTIONS:

• The NJAC Act gives excessive powers to the executive in appointing judges, violating the independence of the judiciary, which is a core principle of the Constitution and a part of the basic structure doctrine.
• The NJAC Act violates the basic structure of the Constitution by altering the primacy of the judiciary in judicial appointments, which has been established through various Supreme Court judgments, including the Second and Third Judges’ cases.
• The presence of the Law Minister and the two eminent persons nominated by the executive in the NJAC undermines the independence of the judiciary and creates a potential for executive interference and political influence in the appointment process.
• The NJAC Act fails to provide adequate safeguards against executive dominance in the appointment process, as the executive can potentially outvote the judiciary in case of disagreements.
• The NJAC Act undermines the principle of separation of powers by giving the executive a significant role in the appointment of judges, which should be primarily a judicial function.
• The NJAC Act lacks transparency and accountability mechanisms, and the criteria for selecting the two eminent persons are not clearly defined, leaving room for potential abuse.

RESPONDENT’S CONTENTIONS:

• The NJAC Act provides for a transparent and broad-based mechanism for judicial appointments, involving various stakeholders, including the executive, judiciary, and civil society.
• The NJAC Act does not violate the independence of the judiciary, as it maintains a significant role for the judiciary in the appointment process, with the Chief Justice of India and two senior-most judges being members of the NJAC.
• The presence of the Law Minister and the two eminent persons ensures accountability and provides a check against potential judicial overreach or misconduct, as well as bringing diverse perspectives to the appointment process.
• The Collegium system has been widely criticized for its lack of transparency, accountability, and potential for nepotism and favoritism, and the NJAC Act aims to address these shortcomings while preserving judicial independence.
• The NJAC Act strikes a balance between the executive and the judiciary by involving both branches in the appointment process, preventing potential judicial overreach and ensuring checks and balances.
• The NJAC Act is a democratic and representative mechanism that involves the executive, which is accountable to the people, in the appointment of judges, who wield significant power and influence in the country.
• The NJAC Act provides for a more inclusive and diverse appointment process by involving eminent persons from various fields, promoting diversity and representation in the higher judiciary.

 JUDGEMENT:

 In a landmark judgment, the Supreme Court struck down the Constitutional Amendment and the NJAC Act as unconstitutional and violative of the independence of the judiciary and the basic structure of the Constitution. The Court held that the Collegium system, despite its flaws, was a more effective method of preserving judicial independence and the separation of powers between the executive and the judiciary.

The Court reasoned that the NJAC Act gave excessive powers to the executive in the appointment of judges, undermining the primacy of the judiciary in this process. The presence of the Law Minister and the two eminent persons nominated by the executive in the NJAC was seen as a potential avenue for executive interference and influence in judicial appointments. The Court emphasized that judicial independence is a cornerstone of democracy and the rule of law, and any attempt to compromise it would strike at the very heart of the Constitution.

The NJAC Act violated the basic structure of the Constitution by disrupting the delicate balance between the executive and the judiciary. The basic structure doctrine, established in the landmark Kesavananda Bharati case, states that certain fundamental features of the Constitution, including the independence of the judiciary, cannot be altered or abrogated by constitutional amendments.

The Court highlighted that the Collegium system, though imperfect, had worked reasonably well in preserving the independence of the judiciary and insulating the appointment process from executive interference. The Court acknowledged the need for reforms to address the shortcomings of the Collegium system, such as lack of transparency and accountability, but maintained that these issues could be addressed through judicial reforms and procedural changes within the existing framework.

The Court also emphasized the principle of separation of powers, which is a fundamental tenet of the Indian Constitution. Allowing the executive to have a significant role in the appointment of judges, as envisaged by the NJAC Act, would undermine the independence of the judiciary and blur the lines between the executive and judicial branches.

The NJAC Act gave the executive a decisive say in the appointment of judges, posed a grave threat to the independence of the judiciary and the constitutional scheme of checks and balances. The Court stressed that the judiciary must remain insulated from external influences and maintain its ability to act as an impartial arbiter and protector of the Constitution.

INFERENCE FROM THE JUDGMENT:

The Court’s judgment was a resounding affirmation of the independence of the judiciary and the primacy of the judiciary in matters of judicial appointments. It upheld the Collegium system as the constitutionally valid method for judicial appointments, while acknowledging the need for reforms to address its shortcomings.

The judgment was met with mixed reactions, with some hailing it as a victory for judicial autonomy and others criticizing the Court for striking down a democratically enacted legislation aimed at introducing transparency and accountability in the appointment process.

CONCLUSION:

The Supreme Court’s landmark judgment in the NJAC case was a resounding reaffirmation of the principle of judicial independence and the primacy of the judiciary in appointing judges to the higher judiciary. The Court’s decision to strike down the Constitutional Amendment and the NJAC Act as unconstitutional and violative of the basic structure of the Constitution marked a significant victory for the preservation of the judiciary’s autonomy and its role as a bulwark against potential executive overreach.

The judgment sparked intense debates and discussions across the legal fraternity, civil society, and political circles, underscoring the delicate equilibrium between the three pillars of democracy – the executive, the legislature, and the judiciary – and the need to preserve the independence and integrity of each institution. While the Court acknowledged the need for reforms to address the shortcomings of the Collegium system, such as lack of transparency and accountability, it maintained that these issues could be addressed through judicial reforms and procedural changes within the existing framework, without compromising the fundamental principles of judicial independence and separation of powers.

Critics of the judgment argued that the Court had overstepped its bounds by striking down a democratically enacted legislation aimed at introducing transparency and accountability in the appointment process. They contended that the NJAC Act struck a reasonable balance between the executive and the judiciary and provided for a more inclusive and diverse appointment mechanism. However, the Court’s stance was clear – the independence of the judiciary was a non-negotiable principle, and any attempt to compromise it would strike at the very heart of the Constitution and the rule of law.

The judgment underscored the Supreme Court’s role as the guardian of the Constitution and its commitment to upholding the fundamental principles enshrined in the constitutional framework. It highlighted the Court’s determination to safeguard the delicate balance of powers and to prevent any branch of government from encroaching upon the legitimate domains of the others.

Moving forward, the onus is now on the judiciary to address the legitimate concerns raised regarding the lack of transparency and accountability in the Collegium system. The Court must strive to restore public confidence in the judicial appointment process by introducing measures that promote greater transparency, objective criteria for selection, and robust mechanisms for accountability, while still preserving the core principles of judicial independence and autonomy.

Ultimately, the NJAC case will be remembered as a landmark decision that reaffirmed the foundational principles of the Indian Constitution and the critical role of an independent judiciary in upholding the rule of law and safeguarding the rights and liberties of the people. It serves as a reminder that the delicate balance of power among the three branches of government must be vigilantly guarded, and that the independence of the judiciary remains a cornerstone of a vibrant and thriving democracy.

REFERENCES:

Kashyap, Subhash C. “Appointment of Judges: A Revisit.” Economic and Political Weekly, vol. 37, no. 37, 2002, pp. 3834–3837.

Khosla, Madhav. “The Indian Judiciary’s Appointment Woes.” The Diplomat, 20 Aug. 2014, https://thediplomat.com/2014/08/the-indian-judiciarys-appointment-woes/.

Mate, Manoj. “The Process of Judicial Appointments: Continuing Controversy and a Proposal for Reform.” Economic and Political Weekly, vol. 48, no. 32, 2013, pp. 27–32.