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Thursday, May 26, 2022

An invented primacy

Supreme Court’s NJAC verdict is an innovation to preserve the judiciary’s power to appoint its own.

Written by T. R. Andhyarujina |
Updated: October 21, 2015 12:04:04 am
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On October 16, the Supreme Court held that the Constitution (99th Amendment) Act, 2014, which authorised the National Judicial Appointments Commission Act, was unconstitutional. The court held that the NJAC Act was consequently ultra vires.

Four SC judges (Justices J.S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Goel) — with Justice J. Chelameswar dissenting — held that the 99th amendment act took away the primacy of judges to appoint judges of the SC and high courts, and this destroyed the basic structure of the Constitution, which was not permitted by the famous decision of the SC in the Kesavananda Bharati case. The majority of the court held that, by giving such power of appointment to the NJAC, the basic feature of the independence of the judiciary was being destroyed.

The independence of the judiciary is no doubt one of the basic, unalterable features of the Constitution. But so far, no one has pronounced in any jurisdiction of the world that the independence of the judiciary can only be secured by the primacy of judges in the appointment of judges.

The Constitution nowhere provides that the judges of the SC and high courts should be appointed by judges or by the primacy of judges in the appointments system. On the other hand, the Constitution provides that every judge of the SC and high courts shall be appointed by the president, after consultation with judges of the SC and the high court (Articles 124 and 217). At the time of the framing of the Constitution, the Union Constitution Committee specifically
provided that the president of India would appoint judges, after consultation with the chief justice of India (CJI) and such other judges as he considered necessary. This was accepted by the Constituent Assembly. B.R. Ambedkar rejected the primacy of the CJI in the matter of appointments as a dangerous proposition.

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But in two judgments, in what are known as the Second and Third Judges cases of 1993 and 1998, the SC controversially established the collegium system of appointing judges by the CJI, in consultation with other judges, and with the president formally accepting their recommendation. The appointment of judges after 1993 by the collegiums has been a matter of considerable controversy. Eminent jurists like H.M. Seervai in India and Lord Cooke of Thorndon of the Privy Council have criticised these judgments, as they were an extraordinary tour de force in the name of independence of the judiciary. The SC rewrote the provisions of the Constitution for the appointment of judges, eliminating the executive’s role in the appointments process for all practical purposes. The establishment of the collegiums was highly criticised by Justices V.R. Krishna Iyer, Ruma Pal and other judges. Even Justice J.S. Verma, who wrote the majority judgment in the Second Judges case, later expressed his disappointment in the manner in which judges were appointed by judges themselves. Even the Second and Third Judges judgments nowhere stated that the appointment of judges by the primacy of judges was a basic feature of the Constitution.

In the NJAC case, the SC, for the first time, has held that if the primacy of judges in appointing judges is taken away by a new body, the basic structure of the independence of the judiciary will be destroyed. In no constitution of the world is there any provision of judges having a decisive voice in appointing judges of superior courts. No such feature is found in any democratic country. It is not found in the appointments of judges in the US, UK, Australia, Canada, New Zealand and South Africa. Nobody has suggested these democratic states do not have independent judiciaries because judges are not appointed by the primacy of judges.

The process of appointing a judge has no necessary effect on his independence as a judge. It is a popular but unfounded assumption that judges appointed by the executive would be subservient to the executive. The most eminent SC judges in India came from the system prior to the collegium system, as Justice Michael Kirby of the High Court of Australia said. Judges appointed by the executive have shown remarkable independence. For example, Justice Krishna Iyer was appointed an SC judge by the government on July 17, 1973. He was remarkable for his independent judgments, particularly the refusal to grant an unconditional stay on the decision of the Allahabad High Court setting aside the election of Indira Gandhi. In the US, several presidents have regretted the independent functioning judges of the US Supreme Court, after they had been selected by the president. Famously, President Dwight Eisenhower called his Supreme Court appointment of Earl Warren “The biggest dam fool mistake I ever made”. As one leading American jurist stated, “The appointment has nothing to do with their independence — justices, once they are appointed, answer to nobody but themselves”. The United Nations General Assembly on December 13, 1985 formulated various principles for judicial independence, but in none of them is there a mention of the method of appointment of judges.

The NJAC, held unconstitutional by the SC, is not a unique institution. In the UK, the chancellor’s power to appoint judges was taken away and conferred on the Judicial Appointments Commission in 2010. A judicial appointments commission is incorporated in the South African constitution. Several other jurisdictions have national judicial appointments commissions. The Constitution (99th Amendment) Act was passed unanimously by both Houses of Parliament and by all the ratifying states. The commission would provide a meaningful role to the judiciary and the executive to present their views and also make participants accountable, while introducing transparency. Significantly, the SC has recognised that the present collegium system requires confidence in the process of appointment of judges and has called for a “consequence hearing” on November 3.

The SC judgment in the NJAC case is a remarkable judicial innovation to legalise its appointing power and preserve it in its hands.

The writer is a senior advocate of the Supreme Court and former solicitor general of India. He appeared in support of the NJAC in the SC

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