Has the Union government really suffered a “stunning blow” through the recent verdict in the National Judicial Appointments Commission (NJAC) case as the media headlines heralded? The answer is “no” — the government has, in reality, emerged a winner. I shall tell you how.
Way back in October 1993, a nine-judge bench of the Supreme Court fabricated constitutional machinery for appointment of judges to high courts and the Supreme Court — “collegium” was the name it acquired. Its legitimacy was re-affirmed in 1998 and, ever since, the Chief Justice and two senior-most judges were empowered to recommend appointments to high courts.
For appointments to the Supreme Court, the collegium consisted of two more judges. This system was in operation since 1994.
The general public started getting increasingly dissatisfied with the collegium’s work, mainly because it lacked transparency — no one knew what transpired behind the closed doors; why some were selected to be a judge while others weren’t. Therefore, after a great deal of deliberations in 2003, the then National Democratic Alliance government moved a Constitutional Amendment Bill to replace the collegium with NJAC. That bill was based on the recommendations of a Commission, popularly known as Justice Venkatachaliah Commission, set up by the NDA government in the year 2000 to review the working of the Constitution. However, that bill lapsed.
In 2013, the United Progressive Alliance government moved the Constitution (121st Amendment) Bill, which empowered Parliament to create a Judicial Appointments Commission. That bill, though passed by the Rajya Sabha, could not be moved in the Lok Sabha before its term expired. The new NDA government brought in the Constitution (99th Amendment) Act 2014 more or less on the lines of the lapsed bill of the
UPA.
President Pranab Mukherjee gave his assent to the bill on December 31, 2014. The validity of the amendment was challenged before the Supreme Court, on the grounds that it undermined the establishment and sustainability of an “independent judiciary”, which is a part of the basic structure of the Constitution. After prolonged hearing and deep deliberations, a five-member bench of the Supreme Court, on October 16, 2015, by a majority of 4:1 declared the 99th Amendment and its companion Act invalid.
The question before the court was not “collegium or commission”, but whether the proposed NJAC will be conducive to or destructive of an “independent judiciary”. The proposed commission was to have six members — the Chief Justice of India and two senior-most judges of the Supreme Court, the Union law minister and two “eminent persons”. Negative vote by any two could ensure the defeat of any proposal. The CJI and the judges had no primacy in the scheme of things. The shift was decidedly in favour of the political executive.
The court in its judgment opined that handing over the power of appointment and transfer of judges of the high courts and the Supreme Court to the political masters will not ensure an independent judiciary; it will harm the cause. Hence, the new law was struck down. Consequently, the collegium system that was in operation for the past 22 years had to be restored, because there can be no vacuum in constitutional functioning.
Parliament is free to change the system as long as it ensures the independence of the judiciary from political pollution. A constitutional amendment requires the support of two-third of members present and voting in each House of Parliament.
Therefore, as the numerical position of parties in Parliament stands today, an amendment can be made, but only with the cooperation of the Opposition. The example of the proposed constitutional amendment to bring in the Goods and Services Tax is apposite. Though the new GST bill is more or less identical to the one proposed by the previous government, it could not get the required support in Parliament.
Probably for this reason the government moved the 99th Amendment bill in line with the UPA’s version, which had lapsed in 2013, in preference to its own 2003 bill that had lapsed in 2004; and it was passed. And, though the verdict has gone against the collective will of Parliament, the forceful manner in which the attorney-general exposed the shortcomings of the collegium system during the hearing has resulted in a benevolent side effect viz. the court not only unanimously agreed that there are flaws in the system but to also invited remedial suggestions; for this purpose the court will re-assemble on November 3. This is no small gain.
But for this litigation it would have been impossible to create a forum to consider improvements to the collegium. This is no time to sulk or to be recalcitrant. The Central government must provide suggestions. The collegium was created through a judicial order and, therefore, additions and alterations will also have to be made through a judicial order within the bounds of binding precedents.
The involvement of one or two persons in addition to the judicially ordained number of judges in the proceedings would promote transparency. The judgment under consideration has frowned upon the participation of the Union law minister, who represents the biggest litigant in the country — the Government of India — in the process of selection and transfer of judges. But why not make the law minister or his nominee an observer without voting rights to be present at the deliberations of the collegium?
Intimate knowledge of the goings-on of the collegium will promote co-operation of the Central government, essential for the smooth functioning of the judiciary and of the collegium. One of the problems that the collegium faced was that it had no mechanism to collect information needed to select the best candidates. The creation and constant updating of a database is a must. This will help the collegium make timely appointments.
To do this there must be a strong and continuous body under the control of the CJI that has the support of the Consolidated Fund of India. Doors must be kept open to receive suggestions from time to time to address problems that may surface in the course of work. Liberty to move the court for this purpose may be restricted to the attorney general, the presidents of the Supreme Court Bar Association and of the Bar Association of India so as to keep the busybodies away.
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com
