(In a two-part essay, Vishwajith Sadananda responds to the previous essay on this blog, arguing that Article 124A and the National Judicial Appointments Commission are constitutional, and should be upheld.)

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There is no doubt that the independence of the judiciary and appointment of judges is very closely related. But, at the outset, it is important to note that the independence of the judiciary cannot be looked at as an absolute principle. While some aspects affecting judicial independence can be corrected by institutional changes, other aspects simply cannot be subject to institutional corrections. For example, the judiciary may be completely free from the executive, but an individual judge may have certain political ideologies that may colour his judgment thereby preventing the adjudicatory process, to some extent, from being truly independent and impartial. Therefore, any enquiry into whether an institutional mechanism provides for judicial independence should necessarily explore the degree of judicial independence as opposed to engage with the question of how absolute the independence is. It is in this backdrop that the 99th Amendment must be examined.

The contention of the Petitioners, in the present matter (4th Judges case), was that Article 124A violates the basic structure of the Indian constitution. The contention, as already argued on this blog before, is founded on the premise that the Court’s decision in Supreme Court Advocates On Record Association v. Union of India (1993) 4 SCC 441 [hereinafter referred to as “the 2nd Judges Case”] held that primacy of the judiciary in the realm of appointments forms part of the basic structure.

However, determining the ratio of the 2nd Judges case requires a contextual understanding of the case.

The Court in the 2nd Judges Case was primarily concerned with reconsidering its decision in the S.P. Gupta v. Union of India [“1st Judges Case”]. In the 1st Judges Case, a 7 judge bench held that the executive had absolute control over judicial appointments and that the judiciary was merely to be consulted in matters relating to appointments. It is in this context i.e., the backdrop of the 1st Judges Case dictum that the judgment of the Court in the 2nd Judges Case has to be read.

A two step approach was used by the Court in the 2nd Judges case. Step 1: Divesting the executive of the absolute discretion enjoyed by it and; Step 2: Resolving the issue of conflict between the constitutional functionaries.

It is in Step 1 that the discussion on independence of the judiciary finds more relevance. The Court relied on the principle of judicial independence in order to completely divest the absolute control of the executive in the matter of appointments thereby negating the effect of 1st Judges Case. This can be observed from the following passage of the majority [para 447]-

“When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act.”

After divesting the power of the executive from making appointments to the superior judiciary, the Court was faced with the task of determining whose opinion would have more weight in the event there was a deadlock between the executive and judiciary. This was Step 2. The majority view of Verma, J. observed [para 451]-

“The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises.”

It is in this context that the Court discussed the principle of primacy. Therefore, the idea of “primacy of the judiciary” was confined only to the issue of deadlock between the consititional functionaries and not judicial independence per se, and to fulfill the “constitutional purpose” of picking the most suitable judges for the superior judiciary. It was observed [para 462]-

“The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge… the initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the courts, it is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court… the object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultee, before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best subserves this constitutional purpose would be the correct answer.”

Hence, it is evident from the aforementioned paragraph that the principle of primacy of the judiciary was discussed for the limited purpose of given weight to the opinion of the judiciary, as an expert body, in the event of a deadlock between the executive and the judiciary. In other words, while judicial independence was used as a principle to divest the power of the executive, the principle of primacy was used to give more weight to the judiciary in the event of a stalemate between the constitutional functionaries to fulfill a constitutional purpose.

In fact, the Court held that achieving the constitutional purpose of selecting the best judges would strengthen judicial independence. Therefore, while primacy of the CJI may be one way of achieving this constitutional purpose, it cannot be said, and indeed the Court did not hold, that it is the only way.

Consequently, on a contextual reading, it becomes clear that, in the 2nd Judges Case, the concept of primacy has no direct nexus with the principle of independence of the judiciary.

Be that as it may, it is important to now test whether, after the 2nd Judges cases, primacy has become part of the basic structure.

In M. Nagaraj v. Union of India (2006) 8 SCC 212, the Court held that only those overarching principles that have become part of the constitutional identity, and are so fundamental to the constitution, can be considered to be part of the basic structure. The Court held [para 25 and 28] –

“In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.”

To conclude, the theory of basic structure is based on the concept of constitutional identity… The word ‘amendment’ postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty…. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day.”

While determining whether an overarching principle has become part of the constitutional identity, it is necessary that the principle should be linked to the provisions of Constitution. This is in tune with the Court’s dictum in Indira Gandhi v. Raj Narain (1975) Supp SCC 1 [para 663]- [“one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.”]

Further, while noting that a basic feature has to be determined on the basis of the placement and the structure of an article in the Constitution, this Court in M. Nagaraj [paras 23 and 35] observed-

“23…However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution.”

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“35. The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.”

In the next post, it will be demonstrated that the Supreme Court’s interpretation of Article 124 in The Second Judges Case does not meet the Nagaraj test of constitutional identity.

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[Disclosure: The author involved in assisting the Respondent (Union of India) in the present case]

Original author: gautambhatia1988