The Supreme Court is Headed Into Uncharted Territory

At stake in the hearings over the National Judicial Appointments Commission is the manner in which India will select its judges. But no one knows what will happen if the SC strikes down the NJAC as unconstitutional.

New Delhi: The Supreme Court’s five-Judge Constitution Bench has deferred the hearing of challenges to the validity of the National Judicial Appointments Commission Act to June 8, which is in the midst of the judges’ summer vacation. This is a rare thing to happen, as normally during vacations, only one Vacation Bench, comprising two judges, sits every day to dispose of urgent matters.

Not much is known, however, about why the Constitution Bench took this extraordinary decision to sit during the summer vacation. Therein lies a story. The government wanted to delay the hearing of the case despite uncertainties in filling judicial vacancies, while the bench was determined to go ahead with the hearing, irrespective of the challenges to its composition. The answer to this mystery may, however, have less to do with the court’s position on the NJAC than with its concern to preserve India’s basic structure doctrine.

The challenges to the current bench, comprising Justices J.S.Khehar, J.Chelameswar, Madan B.Lokur, Kurian Joseph, and Adarsh Kumar Goel, have been unprecedented.

First, some of the 11 petitioners pleaded for recusal of Justice Khehar, who presides over the Bench, because he is a member of the outgoing collegium to select judges.

The second challenge was to the Chief Justice of India’s role as member of the NJAC. The NJAC comprises six members — the CJI, the two senior-most Judges of the Supreme Court, the Union Law Minister and two eminent members to be selected by a committee comprising the Prime Minister, the Leader of the Opposition, and the CJI. CJI H.L. Dattu refused to join the NJAC and the 3-member selection committee to select the two eminent members of NJAC. This resulted in a stalemate, and some senior counsel appealed to the bench for a direction to the CJI to take part in the NJAC.

The third dilemma the court faced was the respondent’s (i.e. the Government of India’s) vociferous demand to refer the case to a larger bench of 11 Judges. They wanted this larger bench to reconsider, as a preliminary issue, the Supreme Court’s judgment in the Second Judges case, delivered in 1993, according primacy to the judiciary vis-a-vis the executive in the appointment of judges. It is settled law that a judgment of the Supreme Court can be set aside only by a bench which is larger than the one which first delivered it.

The five-judge bench patiently heard counsel on both the sides, a few interveners, and some eminent amicus counsel, to resolve these challenges, although it chose not to disclose immediately the detailed reasons for its decision to reject the pleas.

Of these, the decision to decline the respondents’ plea to refer the case to a larger bench of 11 judges was the most significant.   Initially, Justice Khehar discouraged attempts by counsel on both sides to compare the NJAC with the collegium, which was laid down by the Supreme Court in the Second (1993) and Third Judges (1998) cases, saying that they must argue on the merits of NJAC, as the collegium was no longer relevant. However, as the petitioners’ counsel continued to rely on the principles laid down in the judgments in the Second and Third Judges cases, the Attorney General, Mukul Rohatgi and counsel for the other respondents, belatedly realised that reconsideration of these judgments by a larger bench was a prerequisite to respond to their arguments, and therefore argued on the reference issue first.

The AG and the respondents’ counsel, among other things, emphasised the need for an authoritative pronouncement on the issue by a larger bench because it impinged on the future of our democracy. While they may well be right, what they implied was that setting aside the judgments in the Second and Third Judges cases by a larger bench could make their task of defending the NJAC and the 99th Amendment easier.

Both the Second and Third Judges cases were heard by benches of nine judges each. While the Second Judges case was decided by a majority of seven judges, the advisory opinion in the Third Judges case was unanimously tendered by the court to the President under Article 143 of the Constitution.

The judgment in the Second Judges case – which was reiterated by the court in the Third Judges case – has been relied on by the counsel for the petitioners in the NJAC case to equate judicial independence with the primacy of the judiciary in the appointment process. The government, however, is arguing that primacy of judiciary in the appointment process is just a facet of judicial independence, and if this facet goes, the entire edifice will not fall.

At least one of the five judges, Justice Kurian Joseph, initially agreed with the respondents that it was difficult to decide the case before the current five judge bench, until an eleven judge bench reconsidered the Second and Third Judges cases. It is interesting to note that Justice Joseph changed his mind, and went along with the other four Judges on the Bench on May 12, after listening to an impassioned plea by Ram Jethmalani, who is the counsel for an intervener, and Fali S.Nariman, the counsel for the lead-petitioner, the Supreme Court Advocates-On-Record Association.

Both Jethmalani and Nariman alleged that the government wanted an immediate reference to a larger bench to hear the case in order to delay the hearing, and hinted that any delay would lead to further uncertainty, and weakening of the judiciary.  Nariman alerted the bench to the possibility that the government would insist that the NJAC Act and the 99th Amendment Act had wiped out the judgment in the Second Judges case, and therefore, even if an 11-judge bench were to uphold the 1993 judgment, it would not really matter to the government. The AG’s answer to this was that he would then argue on the merits of the NJAC Act. The Bench then wondered aloud, asking what prevented the government from doing precisely that – arguing on the merits of the NJAC without seeking a reference to an 11-judge bench.

Ram Jethmalani, counsel for the petitioners, cautioned the bench that if it yielded to the government on the reference issue, it would set a bad precedent, and the government would be emboldened to seek reconsideration of even the Keshavananda Bharati judgment of 1973, which gifted the basic structure doctrine to our democracy. The same arguments which the AG advanced in favour of referring the NJAC case to an 11-judge bench, namely, that ‘times have changed, and there is no harm in relooking’ might then apply to Keshavananda. The AG immediately denied any move to seek reconsideration of Keshavananda, which was decided by a bench of 13 judges with a majority of seven, but the denial appeared insufficient to erase the lingering doubts about the government’s intentions in seeking a reference.

One can only speculate about whether all of this influenced Justice Joseph to change his mind, and go along with the majority.

As the bench went ahead, two more challenges were in store, which defied easy resolution: One, the absence of a mechanism to select judges at present, with the Collegium dead and gone, and the NJAC not taking off; and second, the spectre of the continuing vacuum if the court were to strike down the NJAC, and the 99th Constitution Amendment Act. Such a decision cannot revive the old collegium system automatically.

While the Court obtained guarantees from the government that the tenure of the Additional Judges in the High Courts, which were about to expire during the hearing of the case, would be extended, the filling up of existing and future vacancies in the High Courts and the Supreme Court which may arise in the near future remains to be addressed.

Having wasted precious time on the reference issue, the government then asked the court to hear the case during the vacation, as it was left with inadequate time to defend itself, before May 15, the Court’s last working day. The petitioners had completed their arguments on merits.

As the NJAC hearing is set to resume on June 8, the Court is apparently entering uncharted terrain, for which there is no worthwhile precedent. The government view – as articulated by the AG – is that if the NJAC Act and the 99th Amendment are struck down by the court as unconstitutional, the pre-NJAC position with regard to judicial appointments will not revive, as it had been wiped out by the legislation, and Parliament has to fill in the void with a fresh law. Both the bench and the petitioners’ counsel have not so far responded to this, and the pundits too have no clear answer to such an eventuality.

The Supreme Court’s five-Judge bench has only declined to take the reference question as a prelude to considering the NJAC Act and the 99th Constitution Amendment on merits. It is possible that it may revisit the issue at a later point, before it concludes the hearing.

But the manner in which the government and some senior counsel have tried to equate the size of the bench with the correctness or otherwise of the court’s decision simply defies logic. Indeed, six judges of an 11-judge Bench, if constituted to reconsider, can set aside the judgment delivered by seven concurring Judges in the Second Judges case, and can still lay claim to legitimacy.