Opinion Justice Varma case: Supreme Court must revisit NJAC

Despite the clear reasoning in the First Judges Case, the issue was revisited in the 1990s. The Court, in a dramatic shift, reversed its earlier stance and turned Article 124 on its head, declaring that “consultation” actually meant “concurrence”. The Supreme Court, thereafter, created the “collegium” system, a body consisting of the Chief Justice and the four senior-most judges, to make appointments to the Court — a system that was never envisaged in the original Constitution, thereby transferring the significant power of choosing and proposing the appointment of judges from the executive to the judiciary.

A rare consensus emerged across the political spectrum in 2014, which resulted in the Constitution (Ninety-Ninth Amendment) Act, establishing the National Judicial Appointments Commission (NJAC). The NJAC was to consist of six members — the Chief Justice of India, the two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons. But in what many considered a significant blow to judicial reform, the Supreme Court, in 2015, struck down the NJAC, declaring it unconstitutional in a 4:1 judgment. The Court invoked the “Basic Structure Doctrine”, ruling that the inclusion of the law minister and two eminent persons and the dilution of the primacy of the view of the judges in the process of judicial appointments compromised judicial independence. This conclusion is, in my view, difficult to comprehend.

I am reminded of what Justice Harlan of the US Supreme Court said while addressing law students: “I want to say to you, if we do not like an Act of Congress, we do not have much trouble to find grounds for declaring it unconstitutional.”

It is not as if the collegium system, in its functioning, had covered itself in glory. In the NJAC case itself, the dissenting judgment of Justice Jasti Chelameswar deals extensively with the multifarious failings of the system. His judgment includes, among other observations, the following passage: “In the next one-and-a-half decades, this nation has witnessed many unpleasant events connected with judicial appointments, events which then lend credence to the speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary.”

He also refers to a speech delivered by Justice Ruma Pal, former member of the Court, in which she was highly critical of the collegium system of judicial appointments and described it as “one of the best-kept secrets in this country”. She had gone on to say: “The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge… 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. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

Justice Kurian Joseph wrote a concurring judgment accepting the majority view. In this judgment, he agrees with Justice Chelameswar that the present collegium system “lacks transparency, accountability, and credibility”, and that the “trust deficit has affected the credibility of the collegium system…”.

The NJAC had restored to the government a modicum of representation in the appointment system as against the original provision, which gave it the exclusive right in choosing the candidates for appointment, and making the actual appointment. It should also be remembered that the entirety of the amendment was carried through by the unanimous vote of 543 members of Parliament, except for the dissent of one member, namely Ram Jethmalani, and was ratified by the legislative assemblies of 16 states.

I appeared for the state of Madhya Pradesh, after the excellent arguments put forward in defence by Mukul Rohatgi, the then attorney general. Sensing the direction that the case was taking, I tried to save the constitutional amendment and the statute by invoking the principle, oft used by courts, of “reading down” a statute. But my suggestions, which were really aimed at saving the constitutional amendment, were not accepted by the judges.

Interestingly, about five years after the Court pronounced its judgment, one of the judges in the majority (Justice Kurian Joseph) publicly expressed regret for having struck down the NJAC amendment, saying: “I now regret being a part of the NJAC judgment after seeing things now.”

I stress the word “now”, which can only relate to the functioning of the collegium over the period of five years after the judgment.

I continue to believe that the Court in the Second and Third Judges cases had turned Article 124 on its head. What is more, in the backdrop of the events and the statements of at least three judges of the Supreme Court, which I have just narrated, it should be evident that the NJAC case was a missed opportunity for serious and meaningful judicial reform.

The issue is important enough to be revisited in public interest and it would be in the fitness of things for the correctness of the NJAC decision to be reconsidered by a larger bench of the Supreme Court, just as the S P Gupta judgment was reconsidered in the Second Judges Case.

The writer is a senior advocate in the Supreme Court