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Rajinder Sachar – CJI voting statistic, system needs to be fine-tuned

Supreme Court Verdict on NJAC:


Justice Rajindar Sachar

Justice Rajindar Sachar (Photo credit: Wikipedia)


Rajindar Sachar

The much-awaited Judgment of the Supreme Court held today that the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, is unconstitutional and void and the consequence is that the collegium system existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014, is declared to be operative.

(Read: Restoring collegium not the best option, by P.P. Rao)

The court found fault with the composition of the National Judicial Appointment Commission. The reason given was that if the inclusion of any of the members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory in its entirety. The court’s reasoning was that the membership of the Chief Justice of India, Chairperson ex officio, and (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC and are  insufficient to preserve the primacy of the judiciary in the matters of selection and appointment of judges to the higher judiciary.

Similarly, clause (c) of Article 124A (1) is ultra vires the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio member of the NJAC. It also held that the inclusion of two “eminent persons” as members of the NJAC is ultra vires the provisions of the Constitution.

I must say that the judiciary itself has a lot of explanation to do for previous bad appointments. The self exculpatory effort at bad appointment is hard to sustain in view of the information given in 1959 by the Home Minister that since 1950, as many as 211 judges were appointed to the High Courts and all appointments except one “were made on the advice, with the consent and concurrence of the Chief Justice of India.” And out of the 211, as many as 196 proposals which were accepted by the government had the support of all persons who were connected with this matter.

It is conceded in the judgment that no one can claim the collegium system to be perfect. The court has, however, held that the constitutional amendment alters the basic structure of the Constitution of India. The court found objection to the situation where the decision of the Chief Justice of India is, in one sense, made to depend upon the opinion of two members of the NJAC, who may in a given case be the two eminent persons nominated to the NJAC in terms of Article 124A(1)(d) of the Constitution. These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason. In other words, the two “eminent persons” (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant – that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC with a veto being conferred on any two unspecified members without any specific justification. To make matters worse, the President cannot even seek the views of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment.

The role of the Chief Justice is reduced to a very low position because the suitability of a person for appointment as a judge even if is acceptable to a majority of the members of the NJAC can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons, neither of whom represent or purport to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.

The opinion of the Chief Justice of India had ‘graded weight’ or the ‘greatest weight’ prior to the 99th Constitution Amendment Act. But now with the passage of the 99th Constitution Amendment Act and the NJAC Act the Chief Justice of India is reduced to a mere voting statistic. Designating the Chief Justice of India as the Chairperson of the NJAC is certainly not a solace or a solution to downsizing the head of the judiciary.

The court also found valid the apprehension expressed by some learned counsel appearing for the petitioners that since no guidelines have been laid down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to the NJAC or that their appointment could be politically motivated.

But notwithstanding this I do not subscribe to the view that the judiciary is a holy cow and an exclusive club for which only lawyers and judges are competent to take a decision. The fear that the presence of a few lay persons would interfere with the independence of the judiciary is misplaced. As an annual report of the Judicial Commission of New South Wales (Ireland) has said caustically, “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates; it is a fundamental principle of our society’s constitutional arrangements.”

The court has finally directed that the result of the declaration is that the  collegium system postulated by the second judges case and the third judges case gets revived. But it has also held that the procedure for appointment of judges as laid down in these decisions read with the (revised) Memorandum of Procedure definitely needs fine-tuning. It has now fixed this matter on 3rd November, 2015, to consider the introduction of appropriate measures, if any, for an improved working of the collegium system.

I may instantly give two suggestions which may be considered — one of the most serious self-inflicted wounds by the judiciary, namely of appointing the Chief Justice of a High Court outside his parent court. The second one is that full publicity be given to the Bar Associations about those who are considered for an appointment. Objections, if any, may be invited from the public and the Bar. It should be necessary for the Chief Justices of the respective of High Courts and the Chief Justice of India to invite comments and relevant information, if any, from the Bar Association concerned.

I hope Parliament and the state legislatures will show balance and not start an anti-judiciary crusade. This decision should be taken as a normal feature and constitutionally permissible.

The writer is a former Chief Justice of the Delhi High Court


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