(In his last essay, Vishwajith Sadanada argued that The Second Judges case did not hold judicial primacy in appointments to be part of the basic structure; and even if it did, following Nagaraj’s Case, a constitutional amendment can be struck down for violating the basic structure only if, in some way, it damages the very identity of the Constitution. This essay continues the argument.)

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Judicial predominance in appointments to the judiciary was never part of India’s constitutional identity. The process was always meant to be participatory and consultative without any predominance of the judiciary. At the time of the drafting of the original Article 124, Dr. B.R. Ambedkar observed [Constituent Assembly Debates, Tuesday, the 24th May, 1949]-

“…The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto in the President or the Government of the day. I therefore, think that is also a dangerous proposition.”

As seen from the aforementioned paragraphs, merely because a system requiring “primacy” was introduced in 1993 by a judgment of the Court, it cannot be said that it has become a part of the constitutional identity thereby elevating the same to be part of the basic structure.

However, assuming, but not conceding, that the decision in the 2nd Judges case held that primacy is part of the basic structure, applying the “identity” and “width” test [See M. Nagaraj at para 102], it cannot be said that Article 124A violates the basic structure.

Article 124A will have to be tested on the basis of how wide the power conferred by the Amendment is and whether the identity of the essential feature is destroyed. In other words, if the power provided for by the amendment is so wide that it destroys the identity of the overarching principle, the amendment is liable to be struck down. [See Pramati Educational and Cultural Trust (Registered) and Ors v. Union of India (2014) 8 SCC 1 at para 29]

Article 124A provides for the setting up of the NJAC comprising of 3 judges of the Supreme Court [the CJI, J1 and J2], 1 member of the executive [the law minister] and 2 eminent persons to be picked by a collegium comprising of the CJI, Prime Minister and Leader of Opposition (or the leader of the largest opposition party, as the case may be).

Without going into the NJAC Act, it can be seen that by mandating that 3 out of 6 members of the NJAC should be judges of the Supreme Court, predominance is still given to the voice of the judiciary in the matter of appointments.

Hence, as the principle of predominance or primacy of the voice of the judiciary is still maintained even after the Amendment, it cannot be said that the width of the power conferred by Article 124A destroys the identity of the overarching principle laid down in the 2nd Judges case.

Lastly, it has been argued by the Petitioners that the presence of the law minister on the NJAC damages the independence of the judiciary.

While it is a sound argument to make that the executive should not have complete control over the appointments process, an argument that canvasses the complete exclusion of the executive cannot be countenanced. It was always the intention of the framers of the Constitution to have a more participatory appointments process by involving the executive in the appointment of judges. T. T. Krishnamachari, a member Constituent Assembly, highlighted the importance of the executive in the appointments process by stating:

“…At the same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to create specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic”.

[Constituent Assembly Debates, Vol. VIII (27 May 1949) 389].

Dr. B.R. Ambedkar also echoed the same view during Constituent Assembly Debates, Tuesday on 24th May, 1949.

The aforesaid view of the Constituent Assembly eventually found its place in the Constitution in the form of Art. 124 which also explicitly recognized the participation of the executive in the appointment of judges within the constitutional framework.

It is also pertinent to note that the Court has also recognized the importance of the executive in the process of appointment of judges. The majority opinion of the Court 2nd Judges case held [Page 688 para 439]:

“This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance and these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector.”

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“There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. 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.” [para 462]

Furthermore, Ahmadi J., in his dissenting opinion, also recognized the role of the executive in appointing judges. He observed:

“It must be remembered that in the process of selection of candidates for appointment to the superior judiciary of the country every effort must be made both by the executive wing as well as the judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases there is no reason why it should not be possible. The executive and the judiciary do not work at cross purposes, in fact their objective is common and, therefore, it would really be surprising if there is lack of understanding in a wide range of cases between them.” [para 292]

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“But a distinction exists between the legal acumen of a lawyer and qualities which go to make a good judge. In relation to the first the Chief Justice of the State would be better suited to opine but in relation to the second the executive will certainly have a role to play. It is the blending of these two roles which brings out the full personality of the candidate” [para 303]

Punchi J., in his dissenting judgment also held:

“The two high effectual constitutional dignitaries, such as the Prime Minister of India aided by the Law Minister, if any, and the Chief Justice of India are expected to interact in a spirit of mutuality and accommodation, and not act at cross purposes.” [para 498]

…

“Thus on the question of primacy I conclude to say that the role of the Chief Justice of India in the matter of appointments to the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the wishes of the other.” [para 509]

It has to be borne in mind that Constitutional Courts, with powers of judicial review, are mainly counter majoritarian institutions and are often required to pass judgments that fail to conform to the popular will of the people. In India, the power of the Constitutional Courts has greatly increased with the rise of public interest litigations. These Courts have become powerful decision makers which affect the lives of many citizens. Therefore, it is in this additional backdrop that judicial appointments must be analyzed.

 Judicial appointments need to be examined through the prism of a democratic polity. A democratic system necessarily requires that institutions derive their legitimacy through the will of the people. Legitimacy, as a principle, is determined by how well an institution fits within the concept of a democratic society. In other words, institutions can be said to be legitimate only if they are accountable to the people they intend to govern.

 In this regard, it is not only actual legitimacy of the judiciary, but also perceived legitimacy that needs to be protected and advanced. In other words, in a democracy, adjudicatory institutions should also seem to be legitimate. As a consequence, the appointments process should also be legitimate and be, to some extent, accountable to the will of the people.

The law minister is appointed through a process that accounts for the will of the people and is subjected to periodic expression of that will through elections. Hence, the presence of the law minister in the NJAC provides a link to a democratic process and enables public engagement in the process of appointment of judges by allowing the scrutiny of a candidate by a democratically elected individual.

Furthermore, the presence of the law minister is in furtherance of the doctrine of separation of powers. The Court has repeatedly held that separation of powers is part of the basic structure of the Constitution. However, under our Constitution, the doctrine of separation of powers is understood in the context of providing checks and balances between the various organs of the State. The presence of the law minister on the NJAC, therefore, provides a check against the concentration of powers in relation to appointment of judges in the hands of only one wing of the State while at the same time not diluting the voice of the judiciary in the matter of appointments. This ensures a more holistic, participatory and democratic approach to judicial appointments.

Therefore, Article 124A is not liable to be struck down.

Original author: gautambhatia1988