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Will NJAC live or die by the sword of the judges it seeks to regulate? All you want to know of NJAC but were afraid to ask [via Mint]

The justices will have to choose one of many bad options
The justices will have to choose one of many bad options

Debate around the National Judicial Appointments Commission (NJAC) has often been emotive rather than dispassionate, with the discourse ranging from senior lawyer Ram Jethmalani calling it an “evil absurdity” to attorney general Mukul Rohatgi pointing to judges who habitually turned up late in court as a reason to ditch the existing collegium system to select judges.

Outside these black-and-white arguments, the more complex reality is that this is easily one of the most difficult tasks the Supreme Court has faced in recent years. While the legal fraternity continues to be sharply divided over the matter of how to select the nation’s senior judges, the SC’s eventual decision will be a landmark, whatever it is.

Here’s an easy guide to the issue, inspired by Gautam Bhatia’s excellent series of 12 blog posts at the Indian Constitutional Law and Philosophy blog by Bhatia and guest writers on the issues.

What is the NJAC?

The NJAC proposes to make the appointment of high court and Supreme Court judges and chief justices more transparent. They will be selected by the commission, whose members will be drawn from the judiciary, legislature and civil society.

How were judges appointed before?

Until the NJAC came along, Articles 124 and 217 of the Constitution dealt with the appointment of judges of the higher judiciary.

These articles specifically said that judges would be appointed by the President of India after “consultation” with the Chief Justice of India (CJI) and other judges.

The word “consultation” is significant because in 1993, in the so-called Second Judges case, the SC decided that the CJI must agree to all judicial appointments—a concept known as “concurrence”.

This created the collegium system, wherein the three seniormost Supreme Court judges decided on who would be a high court or Supreme Court judge.

What will the NJAC do?

It will replace the collegium.

With the NJAC amendment, Articles 124 A, B and C were added to the Constitution to make the NJAC valid.

Articles 124 A and B define the NJAC, its members and their duties, while Article 124 C empowers Parliament to make laws in the future to regulate the procedure for the appointment of judges.

Who will be on the NJAC?

  • The CJI will be chairperson
  • The next two seniormost Supreme Court judges
  • The law and justice minister; and
  • Two eminent persons, to be selected by a committee comprising the CJI, Prime Minister and leader of the opposition

Why is it not in action yet?

The NJAC Bill 2014 that established the NJAC was introduced and passed by both houses of Parliament with the Constitutional (99th Amendment) Bill 2014 in August last year. The President gave his assent to the bill on 31 December 2014 and the Act was notified by the government on 13 April 2015. However, by then the Act had been challenged in various public interest litigations in the Supreme Court.

The NJAC hasn’t yet taken up its mandate. CJI HL Dattu wrote to the Prime Minister on 25 April 2015, “I have to say that it is neither appropriate nor desirable to attend the meeting or be part of the NJAC till the Supreme Court decides its validity.”

On 15 July 2015, both sides completed arguments in the NJAC matter and the Supreme Court has been working on writing its judgement since then.

How did the collegium system come about?

The collegium system evolved after three landmark judgements of the Supreme Court, known as the ‘three judges cases’: the first, second and the third judges cases.

The so-called first judges case was the S.P. Gupta case. It decided on 30 December 1981 that the President could, with sensible reasons, refuse judges’ names recommended by the CJI.

This gave the executive more power than the judiciary in the appointments process.

In the second judges case, a nine-judge bench of the SC went the other way and created the collegium by reversing the first judges case: the majority verdict written by Justice J.S. Verma in the Supreme Court Advocates on Record Association vs the Union of India case on 6 October 1993 said that the CJI must be given the primary role in judicial appointments.

The reasons Verma gave for his ruling were “justiciability” and “primacy”, or, in his words, “...this being a topic within the judicial family, the executive cannot have an equal say in the matter” of appointments. “Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary,” Verma added.

However, the three judges ruling in this case could not agree on the precise role of the CJI in the process, leading to years of confusion surrounding the appointment and transfer of judges.

The last judgement in the series, the 1998 third judges case, cleared things up after the President asked the Supreme Court to do so. In this case, the Supreme Court came up with nine guidelines on how the collegium system should function.

This third case cemented the supremacy of the judiciary in the appointment and transfer of judges.

What are the arguments for the NJAC?

The Indian Constitutional Law and Philosophy Blog, curated by Delhi lawyer Gautam Bhatia, has posted a detailed 12-part series of arguments for and against the NJAC, which examines the complex alternative readings of the laws.

At its heart, the matter depends on the reading of the evolution of the collegium system and on whether something like the NJAC can ever be constitutional because it possibly upsets the principle of judicial independence.

Was the creation of the NJAC constitutional?

The validity of Article 124 A, which basically did away with the collegium, replacing it with the NJAC, is the crux of the matter before the Supreme Court.

Arguments for:

The NJAC amended the Constitution, so the second judges case that created the collegium is irrelevant because the Constitution is now different from what it was back then.

The so-called “basic structure of the constitution”, whose primacy has been upheld by several SC judgements because it safeguards the separation of powers and the independence of the judiciary from the executive, remains intact under the NJAC, as the NJAC’s chairperson is the CJI, who has an important role to play.

Furthermore, the NJAC is good for democracy (which is also a basic feature of the Constitution) and requires that no organ of the state, including the judiciary, enjoys absolute freedom.

Attorney general Mukul Rohatgi argued that to retain “public confidence”, judicial appointments “must be seen both in the context of independence of the judiciary as also the need for checks and balances on it”.

Against:

The counter-argument is that Parliament made an unconstitutional amendment by introducing Article 124 A. In the second judges case a nine-judge bench laid down the primacy of the CJI as part of the basic structure of the Constitution and the 99th Amendment Act cannot simply violate this now.

What about Parliament’s sway over the NJAC?

Article 124 C gives Parliament powers to govern the functioning of the NJAC by making ordinary laws in the future.

Arguments for:

a. This by itself does not affect the separation of powers. Historically, Parliament has always had power over the judiciary without compromising the separation of powers.

b. Even with the separation of powers, it is considered normal to redistribute the powers in favour of one of the pillars of democracy from the other.

c. Parliament has been given “legislative supremacy” under the Constitution, which is why it could pass the 99th Amendment that created the NJAC in the first place.

Against:

a. Article 124 C empowers the legislature to freely change the powers governing the NJAC through the ordinary law-making process. This obviously violates the theory of the separation of powers. It basically gives the legislative pillar massive powers, which can lead to an elected dictatorship by Parliament and ultimately the suppression of democracy.

So even if the Supreme Court held that the NJAC is valid, Parliament should not be able to change the laws related to the Constitution or governance of the NJAC so easily.

Is the second judges case relevant to NJAC?

The second judges case decided that the CJI has the final word, i.e. “primacy”, in judicial appointments.

One of the major bones of contention in the NJAC matter was whether this principle of the CJI’s “primacy” had become a constitutional convention, i.e., a fundamental part of the Constitution, that could not simply be changed by Parliament whenever it felt like it.

In the second judges case the court said that “once it is established to the satisfaction of the Court that a particular convention exists and is operating, then the convention becomes a part of the ‘constitutional law’ of the land and can be enforced in the like manner”.

Arguments for NJAC:

Conventions are only a supplementary system of enforcement of the basic structure of the Constitution. Changing the convention of the collegium system does not change the basic structure if the independence of the judiciary is maintained.

Against NJAC:

a. The second judges case decision gave the CJI the main power in appointments to ensure the independence of the judiciary, which has now become part of the basic structure of the Constitution.

b. Applying the English law doctrine of convention, the collegium system has already developed into a constitutional convention and should not be tampered with.

Should eminent persons be part of the NJAC?

Article 124 A sets out the composition of the National Judicial Appointments Commission and envisages the presence of two “eminent persons” on the NJAC, who would be nominated by a committee of the Prime Minister, the CJI and the leader of the opposition or the single-largest opposition party in the Lok Sabha. One of the eminent persons must be a woman or someone belonging to a scheduled caste, scheduled tribe, other backward classes or another defined minority.

For:

a. Eminent persons would represent the people and civil society, which would increase the confidence of the people in the judiciary. Their presence on the NJAC ensures that the judges who are selected would remain sensitive to the people’s interests.

b. The presence of eminent persons will bring diversity in the NJAC and by extension in the judicial appointments. Eminent persons facilitate a participatory appointments process and bring in plurality of viewpoints. The UK leads by example in this regard where the Supreme Court selection commission is to consist of at least one non-legally qualified member while the UK’s Judicial Appointments Commission comprises five such lay members.

c. Eminent persons will act as a check against arbitrary exercise of power by any of the other members on the NJAC. They would be truly independent individuals who approach the appointments process from a detached standpoint.

Against:

a. Just who exactly is an eminent person under Article 124 A is rather vague because no criteria of selection has been given. The committee’s views on who is eminent could be radically different from the view of the general public, or there could be disagreement even within the committee of who is eminent, in the absence of a general criteria.

b. Eminent persons could pose a risk to the independence of judiciary specially if they have vested interests in the executive, because they have the effective power to shoot down the nomination of any candidate.

c. Eminent persons would not be able to determine the capability of a judge if they have no experience in the field.

If the NJAC is killed by SC, what would happen to it?

The two options are the so-called “doctrine of revival” and the “doctrine of eclipse”. This is interesting but also academic, because the Supreme Court has never decided on this before and so no one knows what will happen.

On the one hand, if the NJAC were struck down, the doctrine of revival would re-instate the collegium system and make the whole NJAC and the 99th constitutional amendment invalid.

On the other hand, the doctrine of eclipse would call for the Supreme Court to tinker with the process of NJAC carefully so that the current portions of the law that are unconstitutional are removed and the NJAC can then function properly.

So what’s going to happen now?

Speculation about the fate of the NJAC is rife. It would certainly be bold of any bench to completely nullify a constitutional amendment passed by a strong legislative mandate, which could heighten tensions between the executive and judiciary. Furthermore, the opacity of the collegium system has been bothering many people, even those opposed to the NJAC.

The Supreme Court has said in the past that striking out a law is a “grave step” and a “measure of last resort” and its most common response is not to strike down the unconstitutional law, but to interpret it in a way that it is consistent with the Constitution.

Delhi lawyer Gautam Bhatia, who has extensively debated the NJAC on his blog with academics and lawyers, commented: “I think the court will strike down the Act, uphold the (constitutional) amendment, and read guidelines into (Article) 124 A.” This could perhaps include a veto power for the CJI, further definition of an “eminent person” and specifying the grounds on which a nominee can be rejected.

However, this could be similarly controversial as the court is in effect rewriting a constitutional amendment.

Ultimately, Bhatia believes that it would take a bench larger than nine judges to overrule the second judges case, but he accepts that this is probably a minority view with many believing that the constitutional amendment itself changes the law and hence the second judges case would not be applicable.

“Of course, I am speculating in the dark,” Bhatia added. “The court might actually strike down the amendment, just as it may well uphold everything.”

This article was first published in Mint. Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

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