Avoidable Constitutional twist
 Source : News Bharati English  Date : 27-Oct-2015

Avoidable Constitutional twist

A matter of political wisdom

National Judicial Appointments Commission  Act   No. 40 of 2014—NJAC-- --  unanimously  passed by the Parliament of India  was  struck down by the Supreme Court of India  recently and declared as unconstitutional and an unhealthy atmosphere of mutual disbelief and distrust took an ugly turn in the history of constitutional era anew. At the outset, I beg to submit that this is not a criticism of the judicial ruling. It is my humble submission. Was the case necessary?

The legal fraternity in India was consulted and the duly elected representatives in the Central legislature were well informed on the issue and several prominent legal luminaries were approached, even the previous government in power too had lent its   support in the new House. At the international scenario, the legislature has a prominent and decisive role in the composition of the Judiciary of the respective countries and despite this the NJAC was invalidated. Wasn’t  the  Finance  Minister  right  when he submitted that ‘ how can the resolution of  the elected  House be undone  by the  unelected ones?'

The  Collegiums  system invented  and initiated by the Supreme Court of India two decades ago  was re-ushered in to  protect the judiciary --caress  the cartel ?  The Judiciary may be thoughtfully right also given the parliament’s unparliamentarily performance witnessed. However unpopular it may seem, the Supreme Court’s ruling needs to be treated as a serious precautionary harbinger. It is equally  important to note that it is not enough to merely  adhere to the letter  of the  rule of law alone,  it is also  essential that the three pillars of the Constitution of India and  the ‘fourth estate’ are   replete  with  political  foresight  and  wisdom as well.

Let us refer the rule book.             

Constitution  of India : Art.124  in the Constitution of India states : “ Establishment  and  Constitution of Supreme Court—(1) There shall be a Supreme Court of India consisting of Chief Justice of India and , until  Parliament by law prescribes a larger number, of not more than seven  other judges.

(2)  Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:    Provided that in the case of appointment of a Judge other than the Chief Justice, Chief Justice of India shall always be consulted.

Art.214 to Art.217 deal with the Constitution and appointment of High Court judges which are almost similar to those of the Supreme Court. It is important to note that in the case of the High Court appointments even the Chief Justice of the High Court and   the Governor of the State are also required to be consulted.

If we refer carefully the provision under Art.124 (3 ) (c ) , an eminent/ person who is known as a distinguished  ‘jurist’ in the opinion of the President , shall be qualified to be appointed as a judge of the Supreme Court.

It is important to note that Section 5 , sub-section 2   of the ‘NJAC Act 2014’  had taken into consideration  , the provision made under  Art.124 (3 ) of the Constitution of India while recommending a name for the appointment of a Judge.

Section 5 and Section 6 of the NJAC Act 2014 deal with the procedure of the appointment of the judges of the Supreme Court and the Hugh Courts in India. Under both these Sections, meticulous care was taken to strictly adhere to the established norms and customs in making appointments. The Chief Justice of India, the Chief Justices of the High Courts, the Governors of the States were required to be consulted by the NJAC before making appointments of the Judges.  Executive interference was not on the cards (as this very fear seemed lurking in the mind of the Judiciary). Unfortunate, unfounded ‘Don Quisotic’ fears. Moreover, it has to be noted that ‘collegiums’ has no reference whatsoever in the Constitution of India. It is interesting to note that Art.124 (1) states,’There shall be a Supreme Court of India consisting of  a Chief Justice of India , and ….’. The question is whether the office of the Chief Justice of India is  a  Constitutional creation and of ‘primacy’  and cannot be a subject matter of any Commission. The legal position requires a serious study.                                                           

Law Commission of India:  214th Report:                                                                          

Let us refer to what the 214th Report of the Law Commission of India has to recommend---“There was no problem till 1993 when the judiciary tried to re-write the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged”, he said. The Chairman of the Departmental Related Parliament Standing Committee of Personnel, Public Grievances Law and Justice in its 28th Report presented to the Hon’ble Chairman of Rajya Sabha on August 2008 has stated thus:- “I would like to conclude by saying that the Government should expeditiously see to it that appointment of Judges in High Courts and Supreme Court are done in a transparent way.

“We have recommended in two ways:   One is, we have to see to it that the collegium system has to be done away with, since appointments will be delayed, we have   said that from the very beginning of identifying the eligible persons, the various places of recommendations, be it at the level of the High Courts, or, at the Governor’s level or at the level of the Departments, and finally be the Supreme Court, should be transparent, and this should be put up in the web site then and there so that the person, who is going to occupy the Constitutional place, is known to the public, and their background should be allowed to be discussed by the public and, finally, it has to go through the process of issuing warrant by the President of India. But, what is happening presently is that from the day one of identifying the person till the issuance of the warrant, nothing is known to anybody except to the persons who are involved in it. Even the persons, who are identified and who are going to be made as judges of the High Court or of the Supreme Court, may not know about it. This type of secrecy is not good for democracy”.

 It may be noted in this context that in every High Court the Chief Justice is from outside the State as per the policy of the Government. The senior most Judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.

 “Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments. “

(Dr. Justice AR. Lakshmanan)   Chairman and (Prof. Dr. Tahir Mahmood)

(Dr.Brahm A.Agrawal)    Member Member-Secretary; Dated: 21.11.2008.

(Source:  214th Report of Law Commission of India, Government of India, pages: 57 - 60).

The Report has properly pointed out that appointments made should not suffer from inadequacy of information. Secrecy of any sort in this regard is not good for democracy.

The Law Commission  has  gone on record  recommending  to do away with  the Collegiums  in the interest of  bringing about transparency  in the  process of appointments.

Elsewhere in the world.  Let us have a cursory reference to what happens in other democracies.

United States of America:

Procedure  of  appointment  of  Judges  in  the  United  States of America  which is  a  great democratic  State  is  as  following :

Quote: “ 1.    Section 2, Article II, the United States Constitution states: "[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States…” All federal judges are appointed by the President of the United States with the advice and consent of the Senate.

  1. The process of appointment of a federal judge starts from the occurrence of a judicial vacancy. The Department of Justice with the White House staff recommends judicial nominations to the President. If the President approves, the nomination is signed and sent to the Senate.
  2. Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees will be investigated, testified and the nomination voted in the Committee. As the majority party in the Senate controls a majority of the committee seats, the voting results on the Committee are generally representative of the voting preference in the full Senate.
  3. Confirmation of judicial appointments requires a majority vote of the Senate. All nominations must be acted on in a session or they die at the end of the session. If a nomination is not acted upon, they must again be made to the Senate by the President. When Senate gives its advice and consent, the President signs the judicial commission which officially appoints the individual.
  4. The influence of Senators in the stage of selecting nominees lies in the Senators' ability to recommend potential nominees. Senators will be asked to recommend potential nominees for a district court vacancy in their home state. In the cases of the Supreme Court or circuit courts nominees, the President may need to take Senators' recommendations into account for political reasons.
  5. The standards of judicial selection include experience, integrity, professional competence, judicial temperament, and service to the law and contribution to the effective administration of justice”

(Source:   The Process of Appointment of Judges in Some Foreign Countries: The United States: 22 November 2000:  Prepared by Mr CHEUNG Wai-lam Research and Library Services Division; Legislative Council Secretariat   5th Floor, Citibank Tower,  3 Garden Road, Central, Hong Kong ).

In a European  democratic  country  like  Germany , the features of  the   recruitment of  judicial  officers  is not  different

“Federal Republic of Germany  :   Quote:  Germany   has a career judiciary, judges join the judiciary early in their working   life and spends their career working in it; although the judicial appointments process begins with an application, there are   regional variations in recruitment procedures; 

There is political involvement in appointments procedures however there is some judicial involvement in the appointments process either through judicial electoral committees or advisory bodies; 

The Minister of Justice makes decision on promotions: in Lander, judicial electoral committees are involved in making recommendations and at federal level, the Prasidialrat which is composed of judicial members provides advice.

Promotion opportunities can be limited in Germany. Judges can seek   secondment opportunities in other areas for example as court clerks in higher courts or in Ministries of Justice;

Legislation requires that the removal of a judge from judicial office without consent is made by a judicial decision. There is also special provision for removal of Constitutional judges for acting against the constitutional order.

United States:    There is both a federal and state court system in the United States.   All federal judges are appointed by the President with the advice and consent of the Senate. These judges hold office during good behavior;

No two state court systems are exactly alike;  Most state court judges are not appointed for life but are either elected or  appointed for a certain number of years;

There are five basic methods for selecting judges at the state level: merit selection, non-partisan election (party affiliation not designated on the ballot paper), partisan election (party affiliation listed on the ballot paper), gubernatorial appointment and legislative appointment/election;

At federal level, judges can be removed in Congressional   impeachment   proceedings. A variety of removal systems are used at state level, 

Comparative Key Points:    Quote:   “The models of judicial appointment in the US and Germany are subject to political involvement at various levels.  These models are interlinked with other elements of the legal system   and   traditions of these countries. 

“The models include Germany:   Role of Minister of Justice in appointments in the states:  Electoral committees comprised of judicial members and political representatives for example in Germany (state level);

“Electoral Committee at Federal level comprised of political representatives of the Federal and Lander Parliaments; 

“At Constitutional Court level, judges are elected by the upper and lower chamber of Parliament.

“United States   Presidential appointment with advice and consent of the senate (Federal  level)  Commission based appointments, also known as merit selection; usually involving an election at some point; 

“Judicial elections: Gubernatorial appointment (appointed by the Governor); this is similar to the Federal system.

Legislative appointment or election”

(Source :  A research article  by  Fiona O’Connell & Ray McCaffrey  : Judicial Appointments in Germany and the United States:  Northern Ireland Assembly, Research and Information Service ,  Paper  60/12 ; 15  March  2012).


In Switzerland  in  some cantons , judges are directly elected  from  among the people  which  is an example of ‘direct  democracy’.

United Kingdom:

In United Kingdom, parliamentary supremacy is beyond doubt and question. In UK such a strange conflict cannot be even dreamt of .

The legal functionaries in India therefore, need not raise the war over   ‘whose   supremacy’ between the two Constitutional pillars. However nobody can afford to forget that India is a Constitutional republic with a democratic structur as well as responsible and accountable government in a parliamentary democracy. In fact, NJAC was a step towards reinforcing the ‘Judiciary’ keeping  public  interest in  view. It was a step towards cleansing the process of justice. It was a step towards preparing way to clear the unbelievable number of pending cases expeditiously. Popular will has to prevail. Justice is an idea which is acceptable to the ‘general will’ and articulated by a more competent  few  select. After all no judiciary in the world is immune from rigorous intellectual scrutiny. Furthermore, people get the government they deserve.

In view of the above can anyone allege that the Union Government was on a mischievous plan?

The NJAC was merely reiterating the case which was the need of the hour.
(The subject needs further in-depth research study)