In the last essay, I argued that a plain reading of the Second Judges Case makes it clear that the collegium arose not merely out of the textual reading of Article 124 (“consultation” as “concurrence”), but as a necessary guarantor of the basic feature of judicial independence, via the requirement of judicial primacy in appointments in order to break deadlocks. Consequently, the Union cannot argue that by substituting Article 124 with 124A – and “consultation” with the NJAC, it has legitimately removed the basis of the collegium.

It might be argued, however, that the paragraphs excerpted from the Second Judges Case are merely incidental observations, which are not meant to bind future Courts. Any ambiguity, it might further be contended, should be resolved against the collegium, given the clear wording of Article 124, and the role that it envisaged for the Executive. In fact, the Union has gone one further, and argued that judicial appointments are no part of judicial independence – the latter is guaranteed by conditions such as security of tenure, fixed salaries, and other institutional methods of insulating judges from the influence of the Executive.

In what follows, I will try to show that even if the Second Judges Case is ambiguous, the ambiguity should be resolved in favour of the proposition that judicial primacy in appointments is a necessary feature of judicial independence, and therefore part of the basic structure. I will do so by pointing to cases decided before and after the Second Judges Case, which will therefore help us place that judgment in its jurisprudential context, both past and future.

In a number of cases, the Supreme Court has held that the independence of the judiciary includes independence at the stage of appointments. Two years before The Second Judges Case, in Sub-Committee on Judicial Accountability vs Union of India, (1991) 4 SCC 699, a Constitution Bench of the Supreme Court referred to a number of constitutional provisions that safeguarded the independence of the judiciary, including Articles 124(2) and 217(1). The Court stated:

 “It is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence. In interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of Rule of law. Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Justices. These provisions also ensure fixity of tenure of office of the Judge. The Constitution protects the salaries of Judges. Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided. Articles 124(4) and 124(5) afford protection against premature determination of the tenure. Article 124(4) says “a Judge of the Supreme Court shall not be removed from his office except” etc. The grounds for removal are again limited to proved misbehaviour and incapacity. It is upon a purposive and harmonious construction and exposition of these provisions that the issues raised in these petitions are to be resolved.” (paragraph 8)

As Mathew J. pointed out in Indira Nehru Gandhi vs Raj Narain, AIR 1975 SC 2299, the basic structure is not some “brooding omnipresence in the sky apart from specific provisions of the Constitution.” A number of judgments have drawn the basic structure from specific constitutional provisions. Following this method, the above excerpt demonstrates that in the opinion of the Constitution Bench, judicial independence, as an attribute of the basic feature of the rule of law, was drawn from various Constitutional provisions, including the appointment provisions – Articles 124(2) and 217(1). This implies that the appointment procedure (as embodied in the constitutional provisions that were subsequently interpreted in The Second Judges Case) is part of the basic structure.

As a preliminary point, at this stage, it ought to be n0ted that if Article 124 is part of a number of provisions which, taken together, guarantee judicial independence – and is therefore part of the basic structure – then it logically follows that the judicial interpretation of Article 124 – i.e., the meaning of Article 124 as expounded by the institutional interpreter of the Constitution, the Supreme Court – is also part of the basic structure. Therefore, even if we accept the Union’s argument that Collegium’s sole basis is the text of Article 124, the judgment in Sub-Committee on Judicial Accountability suggests that the parliament is still not competent to amend and remove it, since 124 itself is part of the basic structure.

The above position was endorsed in Union of India vs Pratibha Bonnerjea, (1995) 6 SCC 765, a case decided two years after The Second Judges Case, which was about pensions of CAT judicial officers (who were treated, for this purpose, as equivalent to High Court judges). The Court thus had to explicate upon the relationship between the government and judges. It observed:

 “From the scheme of the Constitution to which we have adverted briefly it is obvious that the Constitution-makers were evidently keen to ensure that the judiciary was independent of the executive… Articles 233 to 237 have, therefore, provided a wholly different mode of selection and appointment of Judicial Officers at the grass roots level and upto the District Courts from the one provided for other civil posts. ”

 The Court in this case, therefore, directly linked the issues of independence and the manner of appointment.

The strongest statement of this principle was made by a three-judge bench in All India Judges’ Association vs Union of India, (1993) 4 SCC 288, decided the same year as The Second Judges Case. Holding that in selections for the lower judiciary, the State Public Services Commission must invite a sitting High Court judge, whose opinion would ordinarily be dispositive (unless there were cogent reasons to the contrary), the Supreme Court also noted:

    “… the separation of the judiciary from the executive, as ordained by Article 50 of the Constitution, also requires that even the judicial appointments at the lower rung are made in consultation with the High Court. If the Judicial stream is polluted at its very inception, the independence of judiciary will remain in jeopardy, for ever.” (para 7)

This, in itself, has been a consistent position followed by the Court. As far back as 1979, in In Re the Special Courts Bill, (1979) 1 SCC 380, the Supreme Court held that a provision allowing for the appointment of retired judges to special courts was unconstitutional and subversive of judicial independence. The core of the Court’s reasoning was that retired judges enjoy no security of tenure; what is important to note, however, is that the Court classified it as an infirmity in the procedural part of the Bill, i.e., going to the question of appointment (paragraph 98). This demonstrates that, contra the Union’s submissions, the manner of appointment is not separate or independent from the question of judicial independence.

Furthermore, in Subhash Sharma vs Union of India, 1990 SCR Supl. (2) 433, which was decided between the First Judges Case and the Second Judges Case, and where the Court recommended that the question be decided by a bench of nine judges (and is therefore important for understanding the logic of the Second Judges Case), it was observed:

      “… the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of “consultation” has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed, vital. The constitutional values can not be whittled down by calling the appointments of judges as an executive act… We are of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection. The purpose of the ‘consultation’ is to safeguard the independence of the judiciary and to ensure selection of proper persons… there are preponderant and compelling considerations why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable.”

 This line of reasoning indicates not only that the independence of the judiciary (which is indisputably a part of the basic structure) extends to the question of appointments, but also that the primacy of the Chief Justice is central to maintaining that independence (in order to continue the “assurance of a non-political complexion”). In the judicial reasoning leading up to the Second Judges Case, therefore, it is clear that the primacy of the CJI was considered by the Court to be part of the principle of judicial independence, and not – as the Union of India contends – a temporary measure designed to deal with an extraordinary situation. So, in K. Veeraswami vs Union of India, 1991 (3) SCC 655, the Supreme Court stated that “the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary.”

Lastly, two recent cases continue the trend discussed above. In Mr. Justice Chandrasekaraiah vs Janekere C. Krishna, which was a case about the Lokayukta appointment procedure, the Supreme Court cited Justice Krishna Iyer’s concurring opinion in Shamsher Singh vs State of Punjab, (1974) 2 SCC 831 for the proposition that the independence of the judiciary is a cardinal principle of the Constitution, and is “guarded by the relevant article making consultation with the Chief Justice of India obligatory.” (para 51) And in Madras Bar Association vs Union of India (Writ Petition 150 of 2006, decided on 25.09.2014), decided by a Constitution Bench of the Supreme Court, four judges surveyed the history of the cases described above, before holding:

 “It would be pertinent to mention, that the judgment rendered by this Court in S.P. Gupta case (supra) came to be doubted in Subhash Sharma v. Union of India, (1991) Suppl. 1 SCC 574. Thereupon, the matter was reconsidered by a constitution bench of nine Judges in, Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441. On the subject of preserving independence in respect of appointment of judges of the High Courts, as also their transfer, the position recorded earlier in S.P.Gupta case (supra) remained substantially unaltered. So also, of appointments of Chief Justices of High Courts and the Supreme Court. It was reiterated, that to ensure judicial independence, primacy in all these matters should be with the judiciary.” (Para 63)

A close reading of all these cases, therefore, reveals the following propositions:

• Judicial independence is part of the basic structure

• Judicial appointments are a facet of judicial independence, and therefore part of the basic structure (All India Judges Association vs Union of India; Union of India vs Pratibha Bonnerjea)

• The mechanism of conducting judicial appointments in a way that guarantees judicial independence (and therefore consistency with the basic structure) is set out in Article 124 (as interpreted in the Second Judges Case). Therefore, by necessary implication, Article 124 as interpreted by The Second Judges Case to require judicial primacy in appointments is part of the basic structure (Shamsher Singh vs State of Punjab; Mr. Justice Chandrasekaraiah vs Janakere C. Krishna)

• In any event, Article 124 has been expressly held to be part of the basic structure (Committee on Judicial Accountability vs Union of India)

• Separately, judicial primacy in matters of appointment has been held necessary to ensure judicial independence, and is therefore part of the basic structure (Subhash Sharma vs Union of India; Second Judges Case; Madras Bar Association vs Union of India; K. Veeraswami vs Union of India)

• Consequently, Parliament is not permitted to amend Article 124 in a manner that takes away judicial primacy in appointments, because this would in effect damage or destroy the basic structure of the Constitution, with respect to the basic feature of judicial independence

For these reasons, the 99th Amendment ought to be struck down.

Original author: gautambhatia1988