The January 4th appointment of Justice Khehar as the Chief Justice of the Supreme Court and the petition imposed thereafter questioning his appointment and by extension the validity of the collegium case has again opened a Pandora’s box full of questions. Thereby it appeared as apt, to recount the narrative which has aimed at questioning what some might call as Judicial Tyranny and others might call as Judicial independence.
The Supreme Court’s decision of deeming the 99th Constitutional amendment[1] as violative of the basic structure of the constitution and more specifically against the judicial emissaries of our country. The response which sparked a huge outcry, none more so over than by Minister, Mr. Arun Jaitley whose quick-fire repartee’ to the decision ended in the proclamation that the “Indian democracy cannot be a tyranny of the unelected”.[2] The revolutionary 99th Amendment[3] radically changed the schema employed for the appointment of the prime judicial officers of the Supreme Court and the High Court.
It set the foundation for the NJAC (National Judicial Appointment Commission) which was to replace the erstwhile two-decade old body entailing a collegium system for judicial appointment. The raison d’être behind it was to entail an incorporation of entities which did not belong to the judicial fold, serving as functionaries pivotal for the appointments of judges. Done so with the sole intent to improve representation in the two-tier body, firstly which was responsible for the appointment of these judges and the second one being the coterie of judges themselves. This was founded on the belief that a degree of lethargy had become implicit in the Indian judiciary, coupled with issues pertaining to the judiciary becoming an old boys club resulting it becoming a doyen of nepotism and riddled with a degree of corruption ( as indicated by Sr. Advocate Soli Sorabjee in a televised debate).
The above thus formed the basis of the conflict, with the primacy of the judiciary being “robbed off ” and by extension completely destroying their haloed independent status. Article 124(2)[4] states that “Every Judge of the Supreme Court shall be appointed by the President … after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem… Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted” While the concerns the appointment of the Supreme Court Justices, in addendum to which is Article 217 of the Indian Constitution[5] concerning with the appointment of High Court Justices.
The NJAC Act makes a crucial interlude for by changing the terminology from “consultation” to ” on the recommendation of the National Judicial Appointments Commission”. By this act the president is no longer addressing the matter with view of taking of purely taking the recommendation on consultative basis instead the president is entirely bound by the NJAC’s decisions. As for the composition of the said committee, it shall entail the Chief Justice, two senior Supreme Court Justices, the incumbent Union Law Minister, in addendum to eminent individuals from civil society ( Art. 124 A)
Those opposing the NJAC, had the views firmly grounded in the belief that it served as an institution which completely took away the apostle idea of Judicial independence. With the decision of 16th October 2015, serving as one in a long line of cases contending with the issue of judicial independence as exemplified by the Collegium system. An exploration of the long litany of cases must be ensued to understand the scope of this conflict.
To begin one goes all the way back to the pre-independence case Al-Jehad Trust v. Federation of Pakistan[6], Sankalchand Hinatlal Sheth[7] which even back then enshrined the idea of judicial primacy and independence. This was then followed by the seminal case of Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225)[8], whereby it was held that judicial independence is an integral part of the constitution’s basic structure doctrine. In addition the case Shamser Singh v. State of Punjab (1974) 2 SCC 831[9] scrutinized that the executive under the dais of the president has powers supplanting even the Supreme Court.
The S.P. Gupta case (S. P. Gupta v. Union of India[10] – 1981 First Judges case) became the very first instance questioning judicial independence and being answered in the negative. The 1994 Second Judges case i.e. Advocates-on-Record Ass’n v. Union of India, AIR 1994 SC 268[11] ensured a stringent understanding of the term “consultation” (Art. 124(2)) in regard to the advise received by the president from the Collegium. It was understood to have meant concurrence, one which would be of a mandatory nature, thereby ensuring that the president has to comply with the collegium accorded recommendations. The subsequent case In Re: Presidential Reference, AIR 1999 SC 1[12], which is referred to as the Third Judges Case, reasserted the claim for judicial independence as it being a part of the basic structure. Using the channel of Rule of law to address the need for independence of the Judiciary.
Moving on to the NJAC case, which invalidated the NJAC, thereby purporting the unelected’s tyranny. The case identified the committee as one which compromised judicial independence. Linking the primacy to the judicial independence. The linkage of the twin aspects of Primacy and independence have been sighted as being key to their primacy as well as their subsequent persistence as an independent functionary. Another aspect as adduced from the majority judgment concerning the case was that the linkage between primacy and judicial independence has its genesis going back to the Constituent Assembly Debates whereby the intent has always been to keep a check on the Executive.
These judgments are well representative of the reign of tyranny to continue for the foreseeable future. At present one suffers from a lack of reasoning and understanding as to why the issue of judicial primacy and independence are essential to such a dogmatic extent as such and what factors be it practical, societal, cultural or more ardently legal serve as obstacle in the dream of achieving a more well representative judiciary and removing an appointing committee of the nature of an old boys club such as the Collegium.
While for the time being the petition has been deposed of, however with the superannuation of Justice Khehar slated for August 2017, it is apparent that this saga has not yet reached its end.
[1] 99th Constitutional amendment
[2]Democracy can’t be a tyranny of the unelected, says Jaitley, BUISNESS STANDARD(Oct. 19 2015),
http://www.business-standard.com/article/current-affairs/democracy-can-t-be-a-tyranny-of-the-unelected-says-jaitley-115101900027_1.html
[3] 99th Amendment To The CONSTITUTION OF INDIA
[4] Article 124(3) Of The CONSTITUTIONOF INDIA
[5] Article 217 of the Indian Constitution
[6] Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324
[7] Union of India v. Sankalchand Hinatlal Sheth 1978 SCR (1) 423
[8] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
[9] Shamser Singh v. State of Punjab (1974) 2 SCC 831
[10] S. P. Gupta v. Union of India AIR 1982 SC 149
[11] Advocates-on-Record Ass’n v. Union of India, AIR 1994 SC 268
[12] In Re: Presidential Reference, AIR 1999 SC 1
ABOUT THE AUTHOR
DHRUV SHEKHAR
Dhruv Shekhar is at present a law student at Jindal Global Law School (JGLS), having studied History before at St. Stephens College. Intrinsically passionate about the Films, Books and Football, he seeks to examine and study his interests within the ambit of the legalities concerned with the said subject matter.
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