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Parsing the 1000+ page NJAC judgment: Long live least worst system but judges admit collegium ‘perestroika’, ‘glasnost’ necessary [LIVE]

The future independence or otherwise of the judiciary will be decided today in the fourth judges case, ruling on the validity or otherwise of the National Judicial Appointments Commission (NJAC).

In a jolt to the central government, the Supreme Court on Friday struck down the constitution's 99th amendment and the NJAC Act as unconstitutional and void, restoring the collegium system for appointment of judges to the higher judiciary.

In a “collective order”, the constitution bench of Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel said that the constitution's 99th amendment and the NJAC Act are unconstitutional and void.

The constitution amendment and National Judicial Appointments Commission (NJAC) Act were brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and the high courts.

The court said the system of "appointment of judges to the SC, chief justices and judges of the high courts and the transfer of chief justices and judges of the high courts that existed prior to the amendment begins to be operative".

The court sought suggestions from the bar for improved functioning of the collegium system. Hearing for the same will take place on 3 November.

Law minister DV Sadananda Gowda said:

“I will go through the text in detail and consult our prime minster, legal experts and others… The will of the people is represented through parliament. We got the will of the people as 100 percent of the Rajya Sabha and Lok Sabha members supported it. I am not going to make any statement as far as this judgement is concerned because I have not gone through it. We have to go through it in detail.”

The judgment

Read the judgment here (PDF) (or below via documentcloud)

A number of judgments deal in turn with the constitutionality of the NJAC, whether the question should be referred to a larger bench (all judges agreed it shouldn’t), whether Justice Khehar should recuse himself (he shouldn’t, ruled Chelameswar and Goel jointly, and Lokur and Kurian Joseph [page 882] independently agreed); Chelameswar’s sole minority dissent, as well as Lokur, Goel and Joseph agreeing with Khehar.

Khehar’s massive majority judgment

Khehar concluded in his 400+ page judgment:

Page 436: Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals, that it is composed of the following:

(a) the Chief Justice of India, Chairperson, ex officio;

(b) two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;

(c) the Union Minister in charge of Law and Justice – Member, ex officio;

(d) two eminent persons, to be nominated – Members.

If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the hands of the learned counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”.

I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”.

It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution.

Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution.

Chelameswar dissent

Chelameswar listed a number of cases where the collegium had “failed”, and concluded in his dissent:

Page 567: The two members of the NJAC can override the opinion of the other four and stall the recommendation. I do not find anything inherently illegal about such a prescription. For the purpose of the present case, I do not even want to embark upon an enquiry whether the constitutional fascination for the basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp . For my part, I would like to examine the question in greater detail before answering the question. There are conflicting views of this Court on this proposition. 197 In my opinion, such an enquiry is not required in this case in view of the majority decision that the AMENDMENT is unsustainable. …

For all the abovementioned reasons, I would upheld the AMENDMENT . However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the ACT.

Only an independent and efficient judicial system can create confidence in the society which it serves. The ever increasing pendency of matters before various CONSTITUTIONAL COURTS of this country is clearly not a certificate of efficiency. The frequency with which the residuary jurisdiction of this Court under Article 136 is invoked seeking correction of errors committed by the High Courts, some of which are trivial and some profound coupled with bewildering number of conflicting decisions rendered by the various benches of this Court only indicate that a comprehensive reform of the system is overdue. Selection process of the Judges to the CONSTITUTIONAL COURTS is only one of the aspect of such reforms. An attempt in that direction, unfortunately, failed to secure the approval of this  Court leaving this Court with the sole responsibility and exclusive accountability of the efficiency of the legal system. I only part with this case recollecting the words of Macaulay – “ reform that you may preserve ” 198 . Future alone can tell whether I am rightly reminded of those words or not.

Lokur on NJAC and recusal

Justice Lokur held that the NJAC’s Article 124A altered the basic structure of the Constitution and the rest of the NJAC constitutional amendment and act provisions could not stand by themselves.

He argued that the President’s and the Chief Justice of India’s (CJI) constitutional position was also affected under the NJAC:

Page 878: The President was presented, by Second Judges case and the Third Judges case, with the result of the consultation exercise carried out by the Chief Justice of India which the Chief Justice of India was mandated to do. It is over and above this that the President was entitled to consult other judges of the Supreme Court or the High Courts. However, the 99 th Constitution Amendment Act and the NJAC Act have taken away this freedom of consultation from the President, who has no option but to take into account only the recommendation of the NJAC and not travel beyond that. Once again, the constitutional significance and importance of the President is considerably reduced, if not taken away. …

The Second Judges case made it mandatory for the Chief Justice of India to take the opinion of other judges and also left it open to the Chief Justice of India to consult persons other than judges in this regard. The opinion of the Chief Justice of India ceased to be an individual opinion (as per the ‘desire’ of Dr. Ambedkar) but became a collective or institutional opinion, there being a great deal of difference between the two. However, the 99 th Constitution Amendment Act and the NJAC Act have considerably limited and curtailed the authority of the Chief Justice of India (both individually as well as institutionally) and the Chief Justice of India is now precluded from taking the opinion of other judges or of any person outside the NJAC. The Chief Justice of India has been reduced to an individual figure from an institutional head.

Dr. Ambedkar was not prepared to accept the opinion of the Chief Justice of India (as an individual) as the final word in the appointment of judges. This is because the Chief Justice of India has frailties like all of us. The apprehension of Dr. Ambedkar was allayed by the Second Judges case and the Third Judges case which made it mandatory for the Chief Justice of India to express a collective opinion and not an individual opinion. The collective and unanimous opinion (duly reiterated if necessary) would bind the President being the collective and unanimous opinion of persons who were ex hypothesi ‘well qualified to give proper advice in matters of this sort.’ However, the 99 th Constitution Amendment Act and the NJAC Act reversed the process well thought out in the Second Judges case and the Third Judges case and have taken away the constitutional authority of the Chief Justice of India and placed it on a platter for the NJAC to exploit.

568. Given our constitutional history, the established conventions, the views of various committees over the last seventy years and the views of scores of legal luminaries beginning with Mr. Motilal Setalvad, the throes through which the judiciary has gone through over several decades and the provisions of our Constitution, I hold that the Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional. The other provisions of the Constitution (Ninety-ninth Amendment) Act, 2014 cannot stand by themselves and are therefore also declared unconstitutional. Similarly, the National Judicial Appointments Commission Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute and it violates Article 14 of the Constitution and is declared unconstitutional. Even otherwise, the National Judicial Appointments Commission Act, 2014 cannot stand alone in the absence of the Constitution (Ninety-ninth Amendment) Act, 2014.

He also pushed strongly for a consultation to improve the collegium system:

Page 880: Under the circumstances, in my 881 opinion, we need to have a ‘consequence hearing’ to assist us in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth judges case! I would, therefore, allow the petitions but list them for a ‘consequence hearing’ on an appropriate date.

Justice Lokur said on the issue of recusal that new rules should be framed:

Page 577: The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench.

Kurian Joseph: Remote possibility of NJAC leading to structured bargaining in appiontments be ‘nipped in bud’, calls for ‘glasnost’, ‘perestroika’

Justice Joseph started out with the Latin maxim: “Entia Non Sunt Multiplicanda Sine Necessitate (Things should not be multiplied without necessity)”.

Complimenting his brother judges’ “masterpiece” judgments, he wrote a very short judgment “leaving all legal jargons and using a language of the common man, the core issue before us is the validity of the Constitution 99th amendment”, holding:

Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud. According to Justice Roberts, court has no power to gerrymander the Constitution. Contextually, I would say, the Parliament has no power to gerrymander the Constitution. The Constitution 99 th amendment impairs the structural distribution of powers, and hence, it is impermissible. […]

All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.

Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system.

To me, it is a curable situation yet.

There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems.

The Second and Third Judges Case had provided effective tools in the hands of the Executive to prevent such aberrations. Whether ‘Joint venture’, as observed by Chelameswar, J., or not, the Executive seldom effectively used those tools. Therefore, the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard.

Justice Goel on NJAC: Unconstitional

Learned Attorney General sought to compare the existing provision for veto by two members of collegium in appointment of Supreme Court Judges as per Third Judges’ case to justify veto under Section 6 (6). As already mentioned, the role of the Law Minister and the non-judge members cannot be placed at par with the Chief Justice and Judges of the Supreme Court. They cannot be compared for obvious reasons. The veto power with the Law Minister or with a non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary.

Read the judgment here (PDF)

Read the NJAC judgment (PDF)

Katju doesn’t like

Former Supreme Court judge Markandey Katju came out with a quickfire blog reaction to the judgment, entitled “Indian Judiciary is beyond redemption”, listing several “facts about my parent High Court at Allahabad”:

So far as my own opinion is concerned, it matters tweedledum or tweedledee whether we have the Collegium system or #NJAC, as I believe that the Indian judiciary is beyond redemption.
What kind of a judiciary is it which often takes 20-30 years to finally decide a case(including appeal, revision, writ petition etc.)?
There are over 32 million cases pending in the Courts of India and it is estimated that even if no new case is filed it will take 360 years to clear the backlog. People who for some reason get involved in a litigation are weeping and crying because date after date is given but the case is not taken up for hearing.
Is it a judiciary or a joke?

So it makes no difference what system of appointment of judges we have, as the entire judicial system has broken down.

Via Twitter

Advocate Karan Mathur (@kmat90) was the first to tweet the news:

#NJAC Act declared unconstitutional!

Mint Supreme Court reporter Shreeja @nesshreeja tweets:

NJAC: Supreme Court holds the 6-member panel unconstitutional;strikes down the constitutional amendment;strikes down the law @livemint

NJAC: Supreme Court upholds the collegium system; asks lawyers assistance in bettering the existing system

Spread Law @Spread_Law tweeted:

You can't bring strangers to appoint judges : #SupremeCourt while declaring NJAC unconstitutional

Legally India @LegallyIndia

Respect! seriously gutsy move by the SC. Bring it on!

Would love to see suggestions judges posit for improving the system. Maybe NJAC will set off serious internal reform

Suhrith @suhrith

Will have to read the judgment(s), but the decision offends separation of powers. Appointing judges cannot be a function of the judiciary.

There are a number of ways to ensure an independent judiciary. Appropriating the process of appointments isn't necessarily one of those.

Legally India ?@LegallyIndia

True, but isn't a faulty appointments process easily enough to ensure a dependent and pliant judiciary forevermore?

S.Vaidhyasubramaniam ?@SVaidhyasubrama

@LegallyIndia @suhrith But isn't SC's seeking a better solution acceptance of a compromised one till then. Can it afford to do that?

Arun Sri Kumar via Facebook

NJAC gone in toto - clear sign (to me) of the immense distrust the Apex Court has for the political class in general, and present dispensation in particular. And who can honestly say that that is not well earned!

Seema Sapra @SeemaSapraLaw

#NJAC - The constitutional amendment declared invalid, 4:1 with Chelameswar J's sole dissent

Manish @jimanish

Aha, a dissent. Will be interesting to read.

10:50: First out of the gates with a story is The Hindu with a brief take.

Sumit Nagpal @Sumit_Nagpal

To be frank I was expecting that the #SupremeCourt will strike down the provision on eminent persons. But striking down NJAC is historic

The Hindu’s Krishnadas Rajagopal @kdrajagopal

SC declares Collegium system as it existed before #NJAC "operative" @the_hindu

By trashing #NJAC and asking govt to "help" it evolve a "better system", SC makes it clear that it will call d shots & not govt

Ill-conceived legislation by the NDA govt. Arun Jaitley has to concentrate more on his ministry than other ones: Kapil Sibal on NJAC

Historic day for democracy. Law officers should resign: Ram Jethmalani on #NJAC

Kochar, J. @lawistics on Ram Jethmalani’s comment:

Hahahaha. This man's reactions be like "I win, You die"

The Indian ExpressUtkarsh Anand @utkarsh_aanand

#NJAC SC overrules govt's argument that Collegium is "dead and buried forever."

Ashish Dixit @adixit_adv

#SC shows who's the boss. #NJAC quashed.

12:34: The Hindu reported that Justice JS Khehar was visibly emotional in his speech before delivering the judgment today, thanking the bar and petitioners’ lawyers, and the government’s lawyers, saying:

“I was neither with those who supported the Collegium nor with those against the Collegium. I was neither with so-so nor was I with so-so. I was with everybody.

“Thank you all. I thank you. Without each one of you this would not have been possible. And this is no lip-service.”

We’ll upload the judgment here as soon as we get it.

Some primers:

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