Supreme Court Advocates-on-Record -
Association and another … Petitioner(s)
Union of India … Respondent(s)
Date of Judgment- 16 October, 2015
Bench: Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, Adarsh Kumar Goel
FACTS OF THE CASE
1) The three judges cases led to intense political debate overl the judicial control of the appointments process. The collegium system of appointment of judges to higher judiciary was criticized on various grounds like being opaque, secretive and gave judiciary unchecked power. Based on the working of the collegium, it was suggested that a commission for selection and appointment, as also for transfer of judges of the higher judiciary should be constituted, which would replace the prevailing procedure contemplated under Article 124(2) and 217(1).
2) To achieve the purported objective, the Government of India decided to scrap the collegium system of appointment by introducing the National Judicial Appointment Commission Bill, 2014. The parliament passed the bill as 99th constitutional amendment act.
3) Article 124 and 217 were inter alia amended, and Articles 124A, 124B and 124C were inserted. Article 124A established a six- member NJAC of which only half the members were to be judges. Three members were to consist of the Union Minister for Law and Justices and two eminent persons nominated by the Prime Minister, Chief Justice of India and the Leader of Opposition in the LokSabha. Further, Article 124C gave Parliament the power to enact the legislation to regulate the appointment process. This was a major departure from the constitutional framework of India.
4) Thus the validity was challenged on the grounds of taking away independence of judiciary and the basic structure of the constitution by depriving the judiciary the primacy it enjoyed in the appointment of judges.
ISSUES
- Whether the primacy of judiciary in the matter of appointment of judiciary was the only way of ensuring independence of judiciary?
- Whether primacy to judiciary in appointment of judges a part of the basic structure of the constitution?
- Whether the 2014 Act ultra vires the basic structure?
Majority opinion on the validity of NJAC Act
1) Judicial appointments, being an integral facet of judicial independence, are part of the basic structure.
In the matter of appointment of judges to higher judiciary under Article 124, 217 and 222, primacy conferred to judiciary is liable to accepted an integral constituent of basic structure. Thus “basic structure” of the constitution will clearly be violated, if the selection process of judges is done by the method as contemplated by NJAC.
To uphold the judicial primacy in appointments, the court looked into the Constituent Assembly debates. The constituent assembly discussed the draft of Article 103, which resembles the present article 124. 10 It provided that the President would appoint the Judges to the Supreme Court and High court in “consultation” with the Chief Justice.
2) Judicial primacy in judicial appointments (with executive participation) is also part of the basic structure.
Dr. B.R Ambedkar, answered the proposals of the members regarding the matter of appointment of Judges. He believed that it was not right to give entire power to the executive and the legislature for appointment of judges as it would be against the independence of Judiciary. Presence of Law Minister in NJAC infringes “Independence of Judiciary” and “separation of power” which would further render amended article 124(1) (c) ultra vires.
Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the Constituent Assembly provided a role for the Executive clearly prohibit the inference that Executive participation in the selection process abrogates a basic feature.
3) The collegium allows for Executive participation while maintaining judicial primacy through the collegium.
The judges further acknowledged that the Union of India was not seeking a review, or reconsideration of the judgment in the Second Judges case, and further, that the Union of India had accepted the said judgment, and would treat the decision of this Court in the Second Judges case as binding. It is therefore apparent, that the judiciary would have primacy in matters regulated by Articles 124, 217 and 222, was conceded, by the Union of India, in the Third Judges case
It was declared imperative to exclude all executive participation in the proceedings of the NJAC for two reasons. Firstly, the executive is the largest individual litigant, in matters pending before the higher judiciary, and therefore, cannot have any discretionary role in the process of selection and appointment of Judges to the higher judiciary (in the manner expressed in the preceding paragraph). And secondly, the same would undermine the concepts of “separation of powers” and “independence of the judiciary”, whereunder the judiciary has to be shielded from any possible interference, either from the executive or the legislature.
4) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.
Parliament had shown no wisdom in including the two eminent persons and conferring on them the right to veto.The veto power with the Law Minister or with a non-judge members, as against a Supreme Court Judge who is the member of the collegium, may involve interference with the independence of judiciary.
Similarly, requirement of special majority in any other ordinary situation was not comparable with the scheme of appointment of judges which is sui generis. Similarly, the plea of giving vital inputs does not justify participation of the non-judge members with the Chief Justice and the Judges in discharging their functions of initiating a proposal or taking a final view. Though, formal act of appointment of judges may be an executive function, there is a unique judicial element in the process of appointment of judges of constitutional courts.
DISSENTING OPINION OF J.CHELAMESWAR
• “Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”
• He also pointed out the difference between basic features of the Constitution and Basic Structure of the Constitution. The Basic structure is the sum of basic features of the Constitution. Amendment of one basic feature does not destroy basic structure of the Constitution.
