(What is the Supreme Court finds that the 99th Amendment and the National Judicial Appointments Commission, in their present form, are constitutionally unsatisfactory, but also does not wish to strike them down? In the first part of this guest post, Chintan Chandrachud explores what the Court might do to bring the 99th Amendment in line with the Constitution. In the second part, Rahul Bajaj discusses the interaction between Court guidelines and Article 124C of the 99th Amendment.)

—

After thirty-one days of argument, a five-judge bench of the Supreme Court has reserved judgment in amongst the most significant constitutional cases before the Court in recent years. Since the Supreme Court’s decision in the Second Judges Case in 1993, appointments to the Court have been made through what has come to be known as the ‘collegium’ system – in which the three senior most judges of the Court play a decisive role in the appointments process. The collegium system suffered increasing criticism, and Parliament attempted to replace it with an appointments process led by a ‘National Judicial Appointments Commission’ (NJAC) through a constitutional amendment and a statute that gives effect to the amendment. The amendment provides that the NJAC will consist of six people – the Chief Justice of India, the two senior most judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for three-year terms by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha and are not eligible for renomination. The Supreme Court has been called upon to decide to constitutionality of the amendment and the statute.

This post will not consider the constitutionality or the merits of the collegium system and the NJAC. Although that is a most significant matter, it has been considered elsewhere (see, for example, here and here on this blog). It will explore a different, less studied, aspect of the case – the remedies available to the Supreme Court. As with the NJAC case, on most occasions on which law is challenged on the basis that it is unconstitutional, the challenge is conceived in terms of a binary – whether to strike down or not to strike down the law. The matrix of remedies available to the court is far more complex than this. In fact, although I have not come across any empirical data on this issue in India (see evidence from the UK here), the most common response to a finding of unconstitutionality is not to strike down the unconstitutional law, but to interpret it in a way that is consistent with constitutional requirements.

Therefore, it is highly problematic to take the premise that: (i) the court finds the constitutional amendment unconstitutional, to mean that (ii) the court will strike down the amendment. Instead, the Supreme Court has several intermediate options falling short of the strike down power before it. In this post, I consider three such options – although this should not be taken to mean that these options are mutually exclusive, or, for that matter, collectively exhaustive. These interpretive possibilities can be divided based on whether they address the composition of the NJAC or the functioning of the NJAC, and it is in this sequence that they will be considered.

1.Composition of the NJAC

Defining ‘eminent persons’ more narrowly

Amongst the arguments that the petitioners have made is that the constitutional amendment makes no attempt to define who the two eminent persons on the NJAC will be. This, it is argued, can give rise to two sets of problems. The first is a ‘malice’ based argument – that the executive could seek to nominate people with favorable political leanings. The second is more of a ‘recklessness’ based argument – that the executive could seek to nominate people who clearly lack the credentials to judge the performance of candidates. The Supreme Court could seek to eschew these concerns by specifying a set of criteria – or qualifications – that eminent persons would need to hold. Conversely, the Court could prescribe a set of disqualifications – for instance, that those who are charged with serious criminal offences will not be considered ‘eminent’.

Modifying the ‘eminent persons’ appointments process

 The constitutional amendment provides that the eminent persons on NJAC are to be appointed by a Committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The argument here is that the politicians could combine to nominate a person who, in the opinion of the Chief Justice, lacks the credentials to be part of the NJAC. One way in which the Supreme Court may seek to avoid this situation is by interpreting the provisions to the effect that the Chief Justice has a veto power in the appointment of eminent persons. This would mean that the Chief Justice would always need to be in the majority, and a 2-1 decision, with a dissenting note from the Chief Justice, would not result in an appointment.

2. Functioning of the NJAC

An exclusive veto power for the judges

 Neither the constitutional amendment nor the statute giving effect to the amendment make it clear how the six-member NJAC is expected to take its decisions. The ideal scenario, presumably, is for decisions to be made by consensus. But where consensus is not possible, the alternative is likely to be a majority decision procedure. The statute specifies that no person shall be recommended for appointment to the Supreme Court if any two members disagree with the appointment. The argument against this requirement is that both sides – the judges and the non-judges – have a veto power over appointments. Arguably, the Law Minister together with one or more of the eminent persons could exercise their veto against independent-minded candidates. In order to grant the judges a degree of primacy in the process, the Supreme Court could read down this provision as applying only to the judges. This would, in other words, mean that assuming that all six members of the NJAC participate and vote, a successful appointment would require the concurrence of at least two of the three judges on the Commission.

There are many reasons for which the middle road – constitutional rights-compliant interpretation – seems intuitively appealing. It would probably enable all sides to claim victory. The government could claim that its amendment secured the Court’s stamp of approval, the petitioners could claim that they succeeded in having important safeguards infused into the appointments process, and the Court could send the message that it has effectively protected constitutional rights without thwarting the democratic will. A legislative sequel or pushback from Parliament would be much less likely in the event of an interpretive solution than if the constitutional amendment were struck down.

Nevertheless, the Court should be conscious of the risks associated with radically modifying the effect of the constitutional amendment. A fairly recent attempt at modifying the effect of a law (in which the provisions for appointment of Information Commissioners under the Right to Information Act 2005 were recast) came under severe criticism, following which the Supreme Court stepped back from its judgment in a review petition (for analysis, see here). Most importantly, some of the interpretive possibilities articulated here may produce an appointments process that closely resembles the existing collegium system. Thus, the NJAC could become the collegium in disguise – in which case, the Supreme Court would have successfully struck down the amendment without being transparent about doing so.

(Chintan Chandrachud is a PhD Candidate at the University of Cambridge)

—

(The second part is by Rahul Bajaj)

—

It is submitted that the Supreme Court can address all the arguments against the 99th Amendment in a cogent manner without striking down the entire framework as unconstitutional and thereby avoid throwing the baby out with the bathwater. Let us examine how it can assuage the unease of those who question the constitutionality of the new dispensation.

First, with respect to the first argument, the Court can read into Article 124A a specific set of guidelines in accordance with which the eminence of persons to be appointed to the NJAC can be judged. More specifically, by delineating a set of factors which would be indicative of the persons’ vast knowledge of the law, impeachable integrity, lack of political affiliations and sustained and enduring commitment to public service and justice, the Court can effectively put to rest the fear that the appointment process would be dictated by extraneous political considerations, ulterior motives or the whims and fancies of the 3-member committee.

Similarly, with respect to the second argument, there are at least 2 conceivable solutions that the Court can adopt to bring the exercise of veto power in line with the values of the Constitution. First, it can set out the parameters in accordance with which the veto power can be exercised, such as the need for those exercising that power to put forth cogent evidence that can bring into question the integrity and competence of the potential appointee in support of their stance. Second, in order to preserve judicial primacy, the court can give the CJI, as the chairman of the NJAC, the power to overrule the veto in exceptional cases by putting forth cogent and compelling reasons for the same.

Finally, it is submitted that if the working of the NJAC is altered in the ways mentioned above, the argument that it undermines the independence of the judiciary would not pass muster for two reasons. First, as the first two Judges’ Cases unequivocally indicate, the focus of the judiciary has always been on highlighting the centrality of the role of consultation in the appointment process. Not only would the new framework institutionalize that desire in a far more well-structured and cohesive manner than has ever been done before, but the inbuilt checks in the new regime would enhance, as opposed to undermining, the independence of the judiciary. Second, the alterations that I have suggested would help create a robust bulwark against the arbitrary use of power which is the only way in which the avowed objective of judicial independence can be achieved.

Possible Constitutional Impediments to the Implementation of the Proposed Solution

In order to implement this solution, the judiciary would have to structure its scope and contours in such a way as to bring it in line with Article 124C of the Constitution. Article 124C reads as follows: “Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.” As Article 124C expressly authorizes Parliament and Parliament alone to delegate to the NJAC the power to determine the procedures and parameters governing its functioning, the argument goes, the issuance of judicial guidelines on these issues would not only run counter to the express mandate of Article 124C, but would leave Parliament with no meaningful power to structure the working of the NJAC. I would submit that such an argument would not hold water for at least 2 reasons. First, while it is true that Article 124C authorizes Parliament to structure the working of the NJAC in exercise of which Parliament enacted the NJAC Act, the issuance of the guidelines that I propose would be nothing more than an interim measure aimed at filling the vacuum that Parliament has created by failing to put in place any objective parameters to govern either the appointment of eminent persons or the exercise of veto power. Put differently, these guidelines would be issued by the judiciary in furtherance of its bounden duty to construe any legislative action harmoniously with the Constitution and would not, in any way, deprive the Parliament of the power expressly granted to it under Article 124C. Ergo, Parliament would be free to incorporate, at any time of its choosing, the guidelines pertaining to the determination of eminent persons issued by the judiciary into Article 124A and the guidelines with respect to the exercise of veto power into the NJAC Act. It would also be free to modify those guidelines or put in place other safeguards in order to attain the fundamental objective of making the process of selection of eminent persons and the exercise of veto power less arbitrary and unfair. The power of the Supreme Court to issue guidelines in the existence of a legislative vacuum despite express constitutional provisions authorizing the Parliament alone to frame laws on the issues in question is best epitomized by its decision in the celebrated case of Vishaka v. State of Rajasthan where the Court issued a set of concrete guidelines for the protection of working women from sexual harassment at the workplace. Even though Article 51(c), Article 253 and entry 14 of the Union List in the 7th Schedule exclusively empower Parliament to frame laws to give effect to India’s commitments under international treaties, the Court decided to give effect to those commitments through the issuance of its guidelines to fill the void created by Parliament. Second, Article 141 and 144 impose a mandatory obligation on all authorities, civil or judicial, to follow the directions issued by the Supreme Court. Therefore, I would submit that the NJAC would be bound by the guidelines issued by the Supreme Court until Parliament makes express provisions to regulate the election of eminent persons or the exercise of veto power. If the 99th amendment or the NJAC Act had contained express provisions to address these two issues in a manner inconsistent with the Constitution and the judiciary had then issued guidelines to bring those provisions in line with the Constitution, the argument that such a step by the judiciary amounts to rewriting express statutory or Constitutional provisions may have passed muster, but since the two acts are completely silent about the parameters governing the exercise of veto power or the selection of eminent persons, the judiciary would be merely discharging its constitutional obligation in construing the new regime in a manner consistent with the Constitution. This would be a mere exercise of judicial pragmatism or, at most, a form of judicial activism actuated by the twin goals of preventing a constitutional crisis and ensuring that the process of judicial appointments does not suffer from the vice of arbitrariness.

In sum, it is a widely accepted proposition that the collegium system entirely failed to achieve the objectives that it was set up for because of lack of transparency, absence of valid parameters for the appointment of members of the collegium as well as absence of objective criteria for the appointment of judges. This being the case, it would be in the fitness of things for the judiciary to imbue the consultative and transparent framework that the legislature, in its collective wisdom, has sought to institutionalize for the appointment of judges with the values that would bring it in line with the Indian Constitution.

(Rahul Bajaj is an intern at the Vidhi Centre for Legal Policy)

Original author: gautambhatia1988