I suggest that the recent “stand–off” on judicial appointments can be resolved as follows:
(i) By the government at the Centre informing the Chief Justice of India that despite its reservations, it accepts – in letter and spirit – the Supreme Court decision of October 2015, and will faithfully implement the memorandum of procedure (MoP) as suggested by the court order of December 2015;
(ii) by the collegium of judges headed by the CJI informing the government at the Centre that it will in future recommend names of persons to be appointed as judges (of high courts and of the Supreme Court) as a united body – either unanimously or by majority – without discord.
I believe there is simply no other way.
Since the Constitution was adopted in 1950, the entire edifice on which judicial appointments had rested was the primacy of the Chief Justice of India. Accordingly by convention, the executive invariably accepted the advice of the CJI as to who should or should not be appointed as judges to the high courts and Supreme Court. And the system worked. No one bothered too much about the precise language used in the relevant article (124) of the Constitution.
How the collegium was born
However, in 1981, in the First Judge’s case a majority in a bench of seven judges opined – “sticking in the bark of words”, to borrow a critical phrase from the US Supreme Court – that on a textual reading of the relevant provisions of the Constitution, the recommendations of the CJI in the matter of appointment of judges in the higher judiciary was not constitutionally binding on the Government of India.
It took several years of hand-wringing and grand-standing, and a whole new batch of appointees in the Supreme Court, to get a larger bench take a fresh look at Article 124.
When a bench of nine judges ultimately did, in 1993, it set aside the majority judgment in the First Judges Case. It said that the Constitution gave to the judges of the Supreme Court the last word as to who should or should not be appointed as judge in the higher judiciary. But the primacy of the Chief Justice, in the meanwhile had become undermined because, during the 1975-77 emergency, orders were passed – with the express approval of the CJI – for transfer of particular high court judges to other high courts at the instance of the executive only because such judges had delivered judgments not to the liking of the executive (Centre or state).
As a result, the bench of nine judges said (in what is now known as the Second Judges Case) that in the matter of appointment of judges it would not affirm the doctrine of the primacy of the CJI, but that on the question of appointment, the opinion of a collectivity of judges headed by the CJI would be preferred. And so the collegium system got first established, with an added caveat: if the government at the centre did not accept the recommendation of the collegium, it would be presumed that the government had not acted bona fide!
Five years later, in a decision rendered by another bench of nine judges (now known as the Third Judges Case) what was said by the majority in the Second Judges Case (7:2) was now affirmed unanimously (9:0). The judgment in the Third Judges Case also recorded a significant statement of the then attorney general of India, made on behalf of the Union of India, that the Union was not seeking a review or reconsideration of the judgment of the court in the Second Judges Case (1993). By express acquiescence of the executive, the collegium system was to stay.
Over the years, however, a lack of transparency in the working of the collegium system had led to much criticism of it.
A constitutional solution squandered
A constitutional way out – there can be no other way – was then recommended by a high-powered commission that had been set up in the year 2000 to suggest improvements in the working of the constitution. Its chairman, the former distinguished Chief Justice Venkatachaliah, said in his report, that a National Judicial Commission for appointment of judges was the need of the hour, but he also said that in order that the commission’s recommendation did not violate the doctrine of basic structure (then in existence since it was first propounded in 1973 by majority in a full bench decision of 13 Judges), he would recommend that the National Judicial Commission should consist of five members of which a majority must be the three senior-most judges of the Supreme Court.
Such a change, whilst not adversely affecting the basic-structure-doctrine, would constitutionally (and validly) alter the system of appointments from that of the recommendations of what was in essence an exclusive judges’ club, to the recommendations of an institutional body – a judicial commission – which included a minority of non-judicial members. Pursuant to the recommendation of the Venkatachaliah commission, the NDA government, then in office, introduced in parliament the Constitution 98th Amendment Bill 2003 but it could not be passed because general elections were called, and the Lok Sabha was dissolved.
Twelve years later, after the general elections of May 2014, the BJP, having secured an absolute majority of seats in the Lok Sabha, formed a government in the Centre, and promptly brought in a new law with regard to appointment of members of the higher judiciary. Under the new law, which was not based on the Venkatachaliah formula, supremacy was given to non-judicial members over judicial members in the National Judicial Appointments Commission – and with a power of veto (in certain contingencies) by non-judicial members over even the unanimous choice of judicial members in the commission. Both the Constitution Amendment Bill and the supporting legislative Bill (the NJAC Bill) were passed unanimously by the two houses of parliament.
The Constitution 99th Amendment Act, 2014, and the NJAC Act, 2014, were challenged in the Supreme Court in writ petitions – the lead petition being filed by the Supreme Court Advocates-on-Record Association (who had, incidentally, also been the petitioners in the Second Judges Case).
After over four months, the constitution bench of five judges of the Supreme Court in October 2015 (by a 4:1 majority) struck down both the Acts as violating the basic structure of the constitution. The concept of the independence of the judiciary was acknowledged by all parties (including government) to be a part of the constitution’s basic structure; the government of the day however argued that appointments of judges in the higher judiciary was not at the core of, or even a part of, the basic concept of independence of the judiciary. But the constitution bench of the court held otherwise.
Since adequate representation was not given to the “judicial component” in the National Judicial Appointments Commission set up under the new provisions, both the constitutional amendment and the law were struck down as violating a basic feature of the constitution. The law as declared by the court instantly became constitutionally binding – under Article 141 – on one and all.
By a later order passed in December 2015, the same constitution bench, in accepting the suggestion of the attorney-general, empowered the Government of India to finalise the existing memorandum of procedure (as had been done pursuant to the judgment of 1993), but with a specific direction that the principles laid down in the Second Judges Case (1993) and in the Third Judges Case (1998) should be faithfully implemented. The “stand–off” between the government and the Supreme Court now is because the MoP has not yet been finalised as directed.
The only way forward now
The collegium system having become firmly entrenched by law declared in October 2015 by the highest court, any harkening back to the Venkatachaliah commission’s recommendations is no longer constitutionally permissible.
In a recent article in the Indian Express, Upendra Baxi has said that we have been now confronted with a situation of “mistrust in governance – whether executive or adjudicative”. And he has suggested the holding of a referendum as a way out of the impasse. I disagree – since it will not be a constitutional way out. Our constitution does not countenance any decision-making by referendum, but only by enacted law or by court decision. The proposal to include in our constitution a provision for a referendum had been attempted in the year 1978 (part of the Constitution 44th Amendment Bill) but this provision failed to muster the requisite votes necessary for it to become a part of the constitution. More significant are the consequences of a referendum, not only irreversible, but at times disastrous: Britain’s vote to leave the European Union has plunged that country into its greatest crisis since 1945.
Now to the second–part of resolving the “stand-off”.
In matters concerning the appointment of judges many of us practising lawyers – although totally averse to the government of the day (any government) having the last word in the appointment of judges – do have reservations about the smooth working of the collegium. As for instance, when Judge No. Two – the judge who will almost automatically by convention succeed the sitting CJI on his retirement at age 65 – disagrees with Judge No. One (i.e. the sitting CJI) as to the name/names of judges to be recommended to the government for appointment. This is not at all an imaginary example – it has happened in the past; and regrettably, past experience has also shown that when this occurs, invariably Judge Nos. Three, Four and Five in the hierarchy get cold feet, shuffle them a bit, and say nothing.
The only effective remedy for such a complete paralysis in the collegium system is to exhibit a united front; which requires bold statesmanship on the part of the collectivity of members of the collegium; because, although constitutionally entrenched, only courageous good-sense can save the collegium system from otherwise everlasting public ignominy! If in this our judges fail us, God forbid, then God help us – because no one else on Earth can.
Fali S. Nariman is a distinguished constitutional jurist and senior advocate to the Supreme Court of India since 1971