(In this guest post, Akhil Deo argues that the Second Judges Case got it wrong in treating judicial primacy over judicial appointments as a binding constitutional convention, and part of the basic structure.)

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The Groundwork

The Supreme Court of India (SC) is currently hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC), and replaces the existing collegium system. One of the issues for consideration, which this essay will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

In what is popularly referred to as the Second Judges Case, where the Court held that primacy must be given to the Chief Justice in the matter of appointments, the SC expressed the following view on constitutional conventions: (at paragraph 449)

 “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.”

The text of Article 124 of the Constitution of India, before the amendment, provided that the President appoints every judge of the Supreme Court, and that while appointing judges other than the Chief Justice he shall ‘consult’ the Chief Justice.

In paragraphs 469 and 470 the Court found that by 1948, a convention had been established that the appointment of a judge could only be made with the concurrence of the Chief Justice. Further, it found that almost all subsequent appointments were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three step test in determining the existence of a convention – i.e., (i) the availability of precedents, (ii) that the actors feel bound by the rule and (iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph 474);

 “…the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive…”

In paragraph 473, as a justification the Court stated that the independence of the judiciary is a basic feature of the constitution and that the exclusion of the final say of the executive in the matter of appointment of judges is the only way to maintain the independence of the judiciary. Further the Court opined that the judiciary itself will be more well informed compared to the executive when it comes to judges suitability. Therefore the court interpreted the word ‘consultation’ in Article 124 to mean ‘concurrence’

The 99th Amendment introduces Article 124A which lists the composition of the NJAC as the Chief Justice, the next two most senior Judges of the SC, the Law Minister and two eminent persons nominated by the Prime Minister, the Leader of Opposition and the Chief Justice. Critiques of the Amendment argue that this clearly violates the basic feature of independence of the judiciary-by not giving primacy to the opinion of the Judicial members.

The crux of the present debate before the Court is that if it has already been held that the exclusion of an executive voice, as a matter of convention, in the matter of appointment is the only way to maintain the independence of the judiciary (which is part of the basic structure), the 99th Amendment is void for violating the basic structure. This position is aggravated by the fact that the Court in the NJAC case refused to refer the issue to a larger bench, meaning that it is bound by the ratio in the Second Judges Case.

Is the 99th Amendment already doomed?

There are three reasons why the constitutional convention argument is not tenable. First, the text of the Constitution never suggested that primacy of the judiciary was required in the matter of appointments. In Mahesh Chandra Gupta v. Union of India the SC had itself held that the appointment of a judge is an executive function of the President (even the smallest discretion in the exercise of this function, however, was wrestled away by the Court in the earlier Second Judges case). During the Course of the Constituent Assembly Debates, Dr. BR Ambedkar stated– “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 vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” Even Justice Ahmadi in his dissenting opinion in the Second Judges case(supra, at paragraph 395, 403) argued that the original intent of the framers did not support an interpretation of the constitution that conferred primacy on the Chief Justice and that such a change would require a constitutional amendment.

Second, reliance on English authorities on the subject of constitutional conventions is questionable with respect to India insofar as the English constitution is unwritten. Scholarly work on conventions in England primarily dealt with codes of political behavior and not express constitutional provisions. Therefore, Jennings’ enquiry was often with respect to political behavior, and not justiciable or even express codes of conduct. Consequently, its application to a written constitution should be, at most, limited to governing unwritten codes of behavior and not those which are explicitly and clearly provided for by the constitution. A similar view was adopted by The Calcutta high Court in Ashok Sengupta v. Union of India(1996 SCC Online Cal 234), where despite the existence of an English convention that the Prime Minister is generally appointed by the elected members of parliament, the Court refused to interfere if an appointment is made otherwise by the President in light of textual Constitutional provisions, opining that- “A third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention.”

Third, the convention in the second judges case was unconventional insofar as it was held to be binding, because constitutional conventions are ordinarily regarded as not being enforceable in Court. There is some precedent in India that accepts the proposition that constitutional conventions are part of constitutional law, for example most recently in the Madras Bar Association case, where the Supreme Court held that the National Tax tribunal(NTT) was unconstitutional. In paragraph 131 of the judgment the Court held as follows:

 “This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature.”

However, there is sufficient authority that contradicts this position. For example, the Canadian Supreme Court in the case of Amendment of the Constitution of Canada, Re , refused to enforce a convention that state consensus must be obtained before enacting a law that concerns them, finding that “What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” The Indian Supreme Court had also recognized as much in the 1977 case of State of Rajasthan v. Union of India, finding that “… it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be.” Again in the Judicial Accountability case, the Supreme Court refused to interdict a member of the Judiciary from continuing to perform judicial functions pending an inquiry into alleged misbehavior. In paragraph 62, the Court rejects the argument that convention requires him to do so and held as follows:

“It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose.”

The collegium system versus the constitutionality of the NJAC

While the above analysis is critical of the Courts’ application of constitutional conventions, the larger question with respect to the Second Judges case and its impact on the NJAC is whether or not the convention of giving primacy to the opinion of the Chief Justice forms a part of the basic structure of the constitution, thereby making it impervious to an amendment.

In light of my arguments above, I suggest that ultimately, what is undoubtedly a part of the basic structure, is the independence of the judiciary. Consequently, both the seemingly binding conventions in is the second judges case and even in the NTT judgment should only be seem as supplementing the independence of the judiciary and not a part of the basic structure in their own right. Therefore, if following a particular convention is not the only way to ensure the independence of the judiciary, then (even if binding) it should be amenable to amendment under Article 368.

With respect to the NJAC there are two reasons why the convention of giving primacy to the Chief Justice is no longer tenable. First, an executive role in only the appointment process does not imply a disregard for the independence of the Judiciary as a whole. Other facets of an independent judiciary, for example, include a fixed tenure and salary, difficult impeachment procedure etc. Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of appointments is not a predominant constitutional feature in other parts of the world, for example, The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman.

Second, the final rule of Jennings’ three-pronged test for determining whether a convention exists is the necessity of a reason for its existence. The reason for the collegium system, where judges appoint judges, according to the Court in the Second Judges Case was the ability of the judiciary to better determine the suitability of their peers. Arguably, this no longer stands true with respect to the collegium. Several prominent jurists and academicians have criticized the collegium system for being opaque with no sense of accountability (see generally here, here and here), and further, as an extra constitutional system that finds no support from the text of the constitution leading to an erosion in the quality of judges that it produced.

Conclusion

These arguments present two propositions:

(Akhil Deo is a third-year student at the Hidayatullah National Law University.)

Original author: gautambhatia1988