Thursday, April 18, 2024

Survival of the Fittest System

Even after the second phase of hearing of challenges to the National Judicial Appointments Commission Act, the collegium system is still pitted against it

BY India Legal Team

The new system of appointing judges in high courts and the Supreme Court, notified by the government on April 13, is a premature baby in the incubator, if not still-born. Its survival depends on how the five judges on the Supreme Court’s Constitution Bench interpret the various facets of independence of the judiciary and parliamentary democracy as articulated by senior counsel.

The judgment to be delivered by them at the end of the current hearing of the challenges to the new system may well be a few months away, but the broad contours of the issues to be dealt with are almost clear.

The second phase of hearing by this Constitution Bench of challenges to the National Judicial Appointments Commi-ssion (NJAC) Act, 2014, and the 99th Constitution Amendment Act, 2014, lasted from June 8 to June 19.
During this time, the central government, some state governments led by the BJP and independent voices sought to address many of the concerns expressed earlier by the counsel for the petitioners on the new system. Whatever be the success rate of the respondents in the ongoing legal battle, it is a historic moment in Supreme Court, with judges being forced to introspect about the merits of the collegium system of choosing judges, which they devised 22 years ago.

The main attack of the petitioners has been that both the Acts under challenge are violative of the independence of the judiciary, and hence unconstitutional for abrogating the basic structure of the constitution. The basis for this argument is that both Acts seek to erase the primacy of the judiciary in the appointment process.

The reason for this proposition is the presence of non-judicial members, as well as their power to prevent the appointment of a candidate recommended by judicial members of the NJAC from being recommended to the President. This would affect the independence of the judiciary and is hence unconstitutional. The NJAC is a six-member body, with three senior-most Supreme Court judges, the Union law minister, and two eminent members, with veto power exercisable by at least two members together.

The central government, through Attor-ney General (AG) Mukul Rohatgi, argued that the primacy of the judiciary in the appointment process is not a basic feature of the constitution, and has no necessary connection with judicial independence. To buttress this point, the AG and other respondents pointed out that the judiciary, during the pre-collegium days, did not enjoy primacy in appointments, but that did not come in the way of its enjoying its independence from the Executive, except during Emer-gency from 1975-1977.


 Attorney General Mukul Rohatgi

Secondly, the respondents argued that petitioners in this case have mainly relied on speculation, surmises and apprehensions that the 99th Amendment Act abrogates the basic structure of the constitution, without bringing forward “hard facts”.

The third limb of their argument is that parliament, rather than the court, is best positioned to assess the needs of the changing times. The collegium system, they argued, has been rendered unreasonable by the passage of time; therefore, they suggested that parliament, in its wisdom, can change it in order to make it reasonable.



The late Justice VR Krishna Iyer

“…a collegium that is untrained in the task, selects judges in a secret and bizarre fashion. There could be room for nepotism, communalism and favoritism in the absence of guidelines. Nowhere in the world do we have judges alone selecting other judges…” — Justice VR Krishna Iyer

The collegium system with primacy to the judiciary in the appointment process, the government argued, has outlived its relevance. It echoed the concerns once expressed by late Justice VR Krishna Iyer: “…a collegium that is untrained in the task, selects judges in a secret and bizarre fashion.

“There could be room for nepotism, communalism and favoritism in the absence of guidelines. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the PD Dinakaran episode is an example.”

Concerns expressed by other jurists like Justice AP Shah and Justice Ruma Pal were cited. A judiciary which assumes complete control over its own composition would have a conformist or a club-like attitude. Judges tend to find virtues in others who display the same outlook. It is most unlikely that a Denning or a Kirby, or Boar Laskin or a Krishna Iyer would be appointed under this system.

A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a group or a faction. Therefore, prejudice and favor of one or the other member of the collegium for an incumbent cannot be ruled out, Justice Shah had pointed out.

Justice Ruma Pal had expressed similar views. According to her, a chance remark, a rumor or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise, a personal friendship or unspoken obligation may color a recommendation. Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system, she had observed after her retirement from the Supreme Court.

The government suggested that such criticisms inspired parliament to devise a new, integrated participatory system of appointment of judges.

The government’s answer to the petitioners’ bogey of violation of basic structure doctrine by the two Acts was more nuanced. The basic structure comprises many features like several pillars in a foundation, some of which were enumerated in the opinions rendered in Kesavananda Bharati case (1973) by a 13-judge Bench. The significance of these pillars, the government argued, is that if one of them is removed, the entire edifice of the constitution will fall. Hence, in judging a constitutional amendment, the question to be addressed is whether it would lead to a collapse of the edifice of the constitution, the government told the court.

More significantly, the government sought to clarify that merely affecting or impinging upon an article embodying a feature that is part of the basic structure is not sufficient to declare an amendment unconstitutional. This is consistent with a Supreme Court ruling in another case that a mere amendment to an article of the constitution, even if embodying a basic feature, will not necessarily lead to a violation of the basic feature involved.

Having said that, the government refused to concede that the 99th Amendment even impinges on the basic structure of the constitution. “It is our view that the 99th Amend-ment is perfectly consonant with it and strengthens the independence of the judiciary while upholding democracy, rule of law and checks and balances,” the AG said in written submissions to the court.

As the two eminent persons on the NJAC are to be chosen by a selection committee comprising the chief justice of India, the prime minister and the leader of the biggest opposition group in parliament, the government suggested that NJAC, in fact, results in dilution of the power of the executive in favour of the judiciary as three out of six members are the three senior-most judges of the Supreme Court.

In answer to the argument that primacy of the judiciary in the appointment process constitutes a basic feature, the government submitted to the court that basic features are to be determined only on the basis of specific provisions of the constitution as originally enacted.
A judicial pronouncement cannot devise a new feature to qualify as a basic feature since something that is devised after the coming into force of the constitution surely cannot be considered a foundation of the edifice of the constitution, the government told the Court.

What follows from this assertion is that the court’s judgment in the Second Judges case sought to make the primacy of the judiciary in the appointment process a basic feature and thus brought the collegium system into being.

As the framers of the constitution did not envisage a system of judges choosing themselves, (as evident from the constituent assembly debates), the government implied that the court ought not to consider the primacy of the judiciary, as exemplified in the collegium system, to be a basic feature of the constitution.

Having initially started with the premise that the court need not consider the constitutionality of the NJAC by comparing it with the outgoing collegium, the court has indeed come a long way by asking the counsel to give it instances of the collegium having gone wrong, of recommending names of judges who are otherwise not suitable and of instances when the collegium pushed a candidate when the government had expressed its reservations.

Whether and how the NJAC survives the ongoing agnipariksha is difficult to say, but what is clear is that even if the collegium resurrects itself by virtue of the court’s hypothetical striking down of the NJAC Act and the 99th Amendment, it will not be the same old collegium.

This is because the court is now reasonably aware of its aberrations, and is serious and sincere to reform itself, thanks to the free and frank exchanges between the Bar and the Bench.

Meanwhile, Solicitor General Ranjit Kumar told a Constitution Bench led by Justice JS Khehar that even if the court scraps the constitutional amendment and the NJAC Act, it lacked the power to hold that this will restore the previous legal position. He said: “This court can quash it (collegium system) but cannot declare that the collegium will revive because that would amount to legislating and re-enacting a provision. Legislating is within the exclusive domain of the parliament and it is not a function of this court.”

The suitability of Justice Cyriac Joseph

The second phase of NJAC hearings in the Supreme Court saw a sharp exchange of views between Attorney General (AG) Mukul Rohatgi and the Bench on the suitability of Justice Cyriac Joseph (below), currently acting chairperson of the National Human Rights Commission (NHRC), for appointment to the Supreme Court.
What was in dispute was the number of judgments delivered by him as a high court judge. The Bench believed that he delivered far more judgments than what the AG suggested.

The Bench, through the Supreme Court registry, obtained data regarding the number of judgments authored by Justice Joseph in the four high courts that he served before his elevation to the Supreme Court and shared the results with the AG.

The AG, who got back to the court on the issue on June 19, said many of the so-called judgments authored by Justice Joseph were, in fact, very brief, running to one or two pages. The AG further disclosed that as a Delhi High Court judge, he reserved hundreds of judgments and got transferred without delivering them, thus forcing re-hearing of those cases.

But what was not brought before the Supreme Court Bench is likely to surprise the judges even further.
Justice Cyriac Joseph, the NHRC’s website shows, had served as a judge in Kerala, Delhi, Uttaranchal (now Uttarakhand) high courts and was chief Justice of the Karnataka High Court before his elevation as a Supreme
Court judge.

However, it is the number of judgments he delivered as a Supreme Court judge which could throw light on his professional progress. An article in The Hindu by V Venkatesan in 2013 had revealed that he authored exactly seven judgments during his tenure as a Supreme Court judge from July 7, 2008, to January 27, 2012.
Venkatesan, in his recent book, Constitutional Conundrums: Challenges to India’s Democratic Process, published by Lexis Nexis (2014), has brought out the proceedings of the NHRC selection committee, which recommended Justice Cyriac Joseph for appointment as a member in 2013, as annexures.

The selection committee which recommends the names of NHRC members for appointment by the president comprises the prime minister, the home minister, the speaker of the Lok Sabha, the deputy chairperson of the Rajya Sabha and leaders of the opposition in the Lok Sabha and the Rajya Sabha.

In 2013, as members of the selection panel, both Arun Jaitley (below) and Sushma Swaraj (right), as leaders of the opposition in the Rajya Sabha and Lok Sabha, respectively, had given dissents against recommending Justice Cyriac Joseph for the post of judicial member in the NHRC. But the then UPA government rejected their dissents without giving any reasons, although a Supreme Court judgment in 2011 mandates that clear and cogent reasons be given for rejecting dissents.

The selection panel had names of three retired Supreme Court judges, namely, Justice Cyriac Joseph, Justice B Sudershan Reddy and Justice VS Sripurkar, for nomination under the category of judicial member. Jaitley wrote that Justice Joseph was completely unsuitable for being appointed NHRC member. He wrote about Justice Cyriac Joseph: “As a judge, he was known for not writing judgments. As against a few hundred judgments authored by every judge of the Supreme Court, Justice Cyriac Joseph is believed to have written only six judgments. He has been, even during his tenure as a judge, perceived to be close to certain political and religious organizations. His close proximity to religious organizations is evident from the fact that media reports have indicated that when certain nuns were sexually assaulted, as a sitting judge of the Supreme Court he chose to visit the institutions where narco analysis of the accused was being carried out in Karnataka. This was strongly objected to by members of the Bar Association in Kerala who protested against the same. He was quoted in the media as having stated that for him his religious affinity was more important than his commitment as a judge.”

Jaitley further wrote in his dissent: “When there are other eminent names of retired judges eligible for appointment available, which include Justice B Sudershan Reddy, Justice VS Sirpurkar, suggested by the government and Justice Ravindran, Justice HS Bedi, Justice Deepak Verma as suggested by some of us, I am unable to persuade myself to concur to the appointment of Justice Cyriac Joseph as a member of the NHRC”.

Sushma Swaraj wrote tersely in her dissent: “Integrity and competence are essential for public office. The proposed name lacks both. Therefore, I disagree.”
The dissents were dated 16.5.2013.


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