Jun 10, 2021
Supreme Court Advocates on Record Association v. Union of India — Case Note
By Danda Sai Shubham
Introduction
Parliament passed two Acts, the Constitution (Ninety-ninth Amendment) Act of 2014 and the National Judicial Appointments Commission Act of 2014¹, to create a National Judicial Appointments Commission (NJAC) for the selection, appointment, and transfer of judges to the higher judiciary. It will take the place of the current Collegium process, which is governed by Articles 124(2) and 217(1) of the Constitution. The main goal was to make the selection process more transparent.
The Constitution (Ninety-ninth Amendment) Act, 2014, which obtained Presidential assent on December 31, 2014, amended Articles 124 and 217 of the Constitution. The National Judicial Appointments Commission Act of 2014 was also signed into law at the same time. The proposed NJAC would be made up of the Chief Justice of India, the next two most senior Supreme Court judges, the Union Minister for Law and Justice, and two eminent people chosen by a separate committee. The Chief Justice of India, the Prime Minister, and the Leader of the Opposition will be on the committee to select the eminent persons.
Hearings on the NJAC began in the Supreme Court of India before a three-judge bench, which then referred the case to a five-judge bench, which included Justice Anil R. Dave. Under Article 124A(1)(b) of the Constitution, the Constitution (Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were informed on 13.4.2015, making Justice Anil R. Dave, J. an ex-officio Member of the National Judicial Appointments Commission. Justice J.S. Khehar was appointed to the bench to replace Justice Dave. There were calls for Justice Khehar to recuse himself from the case because he was a member of the Supreme Court’s Collegium of Five Judges, which recommended judicial appointments to the higher judiciary, which was directly affected by the NJAC’s establishment and whose legitimacy was being questioned.
Justice Khehar noted that², in addition to himself, three other judges on the current Bench would eventually become members of the Collegium or the NJAC. As a result, the charge of conflict of interest may have been levelled at each of them. Though a Judge can choose to recuse himself from a case entrusted to him by the Chief Justice, this is a personal decision. Before taking office, a judge swears to carry out his responsibilities without fear or favor. Accepting a recusal prayer, unless justified, would be a violation of his oath of office. Justice Chelameswar opined the following: (1) If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case; (2) if the Judge’s interest in the case is not financial, an inquiry is required to determine if the existence of such an interest disqualifies the Judge. (3) the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.
Issues in Question
1. The constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 (hereinafter referred to as the Constitution (99th Amendment) Act), as well as the National Judicial Appointments Commission Act, 2014, has emerged as a bone of contention in the above case.
2. Given that a Constitutional Amendment can only be valid if it is consistent with the Constitution’s basic structure, the key question to ask is whether the challenged amendment changes or affects the basic structure, and therefore is unconstitutional on that basis.
Contentions from the Respondents Side
Respondents relied on the decision in S.P. Gupta v. Union of India³ (First Judges case), which was overruled by Supreme Court Advocates-on-Record Association v. Union of India⁴ (Second Judges case), which was upheld in Re: Special Reference №1 of 1998⁵, to support the validity of the NJAC (Third Judges case). Respondents tried to establish that the First Judges’ interpretation was right, as well as challenged the correctness of precedent established in the Second and Third Judges’ cases. The respondents relied on what was called the First Judges case although the case was overruled by a larger bench but the respondents were of the opinion that in order to achieve the above goal, it was claimed that various important aspects of the case had not been brought to the attention of the Court when the dispute in the Second Judges case was discussed. It was argued that if the controversy in the Second Judges case had been investigated in the proper light, the majority’s opinions would not have been reported by this Court. The learned Attorney General contended that in the representations made by the learned Counsel representing the Petitioners for adjudication of the merits of the controversy, the learned Attorney General had put emphatic emphasis on the judgments reached by the Court in the Second and Third Judges cases. The learned Attorney General argued that the conclusions reached in the above decisions needed to be reconsidered in a new examination to see whether the conclusions reached could withstand the original provisions of the Constitution, as interpreted in the context of the Constituent Assembly debates. It was pointed out that the issue for reconsideration of the decision rendered in the First Judges case arose in Subhash Sharma v. Union of India⁶, where the questions considered were whether the Chief Justice of India’s opinion in regard to the appointment of Judges to the Supreme Court and High Courts, as well as the transfer of High Court Judges, was entitled to primacy, and also whether the Chief Justice of India’s opinion in regard to the appointment of Judges to the Supreme Court and High Courts, was entitled Since the issue was brought up at the request of practicing attorneys and bar associations, and no other party was present during the hearing, no other stakeholder was involved. They also argued that there was no provision in the Indian Constitution, either when it was first drafted or at any subsequent stage, that allowed judges to appoint judges to the higher judiciary. As a result, it was claimed that Judges appointing Judges was contrary to the Constitution’s provisions. They primarily relied on the constitution’s interpretation and also the opinion that in the second and Third Judges case the court did not take cognizance of vital aspects of the order.
Contentions from the Plaintiff Side
Opposed to what the respondents were using to rely on their arguments, the plaintiff’s relied on the judgement of the second and Third Judges’ case⁷. On the subject of amending the Constitution using the process outlined in Article 368, it was determined that the power of amendment is not a plenary power. It was pointed out that the above power was restricted in the sense that it did not have the ability to amend the Constitution’s “heart” or “basic structure.” It was claimed, citing numerous sources, that “judicial independence,” “rule of law,” “judicial review,” and “separation of powers” are components of the Constitution’s “essential framework.” In light of the above, rules governing the appointment of judges to the higher judiciary must be written in such a way that the above principles are preserved. It was argued that any action that would result in the Supreme Court and High Court Judges being appointed by an institution other than the judiciary itself would be unconstitutional and would undermine the basic tenet of independence of the judiciary. They questioned whether there can be an independent judiciary when the question comes to appointment of judges and the executive has a role to play in it. The constitutional process of appointing judges to the higher judiciary is inextricably related to the independence of the judiciary. The phrase “independence of the judiciary” is a fundamental aspect of our Constitution, and if it implies then, the Framers of the Constitution should never have intended to grant the executive this power. The plaintiffs largely based their arguments on the pre independence era of governance and the points that were relied on by the constituent assembly while framing the constitution and were also holding their end of basic structure to prove the interference of the executive as unconstitutional.
Rules taken into consideration
According to Article 124(2), every judge of the Supreme Court is named by the President of India by warrant under his hand and seal after consultation with the judges of the Supreme Court and the High Courts of the various states.
Under Article 217(1) of the Constitution, every High Court Judge shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office in the case of an additional or acting Judge, as provided in Article 224, and in any other case.
Constitution 99th Amendment Act, 2014 — In this amendment Articles 124A, 124B, and 124C articles were added. Amendments were made to Articles 127, 128, 217, 222, 224A, and 231 of the Constitution as well. A National Judicial Appointments Commission was established as a result of the amendment under the National Judicial Appointments Commission Act, 2014. This Act governs the National Judicial Appointments Commission’s process for recommending persons for appointment as Chief Justice of India and other Supreme Court Judges, as well as Chief Justices and other High Court Judges, and for their transfers.
Lastly, the Article 368(1) of the Indian Constitution, which reads “Notwithstanding anything in this Constitution, Parliament may, in the exercise of its constituent power, amend any provision of this Constitution by way of extension, variation, or revocation in accordance with the procedure set out in this article.”
Ratio of the Judgement
The supremacy of the constitution, the republican and democratic forms of government, the federal character of power distribution, secularism, “separation of powers” between the legislature, the executive, and the judiciary, and the judiciary’s independence are all part of the constitution’s basic structure. The court relied on one or more articles of the constitution, often in accordance with the preamble, to carve out any of the above “basic features.”
A joint reading of Articles 12, 36, and 50 led to the derivation of the principle of judicial independence. It is not always possible to deduce the concerned “basic structure” from a simple reading of the Constitutional provisions. And often, based on the all-important silences buried inside those posts, such a deduction is made. Where an appeal is brought on the grounds of a breach of the basic framework with respect to the judiciary’s independence, the rightful interpretation is and must be that articles 12, 36, and 50 on the one side, and articles 124, 217, and 222 on the other, read together, form the basis.
The Supreme Court bench recognized the importance of establishing the most effective, open, and organized framework possible and invited the attorney general, Solicitor General, Additional Solicitor Generals, legal experts, and all counsel to apply their views and recommendations on the collegium system. The court arrived at the following conclusion after considering all of the suggestions:
1. The CJI’s decision should be based on a majority decision by all members of the collegium.
2. The selection of judges must be governed by a Memorandum of Procedure, which will be determined by the Government of India in consultation with the Chief Justice of India.
3. The following items must be included in the memorandum of procedure:
● At both the High Court and the Supreme Court, there must be an age limit for nomination.
● The entire eligibility requirements must be published on the court’s website as well as the Department of Justice of the Government of India’s website.
● All of the collegium’s discussions must be registered, and the specifics of any dissenting opinions must be kept confidential while still adhering to the provision of transparency.
● A secretariat with its own set of rules and responsibilities must be formed for the purpose of managing the collegium’s functionaries.
● Establishment of a protocol in the event that a lawsuit is filed against someone who is being considered for appointment by the collegium.
Order of the court:
1. The request for a wider bench and reconsideration of the second and third judges’ cases has been denied.
2. The Constitution (Ninety-Ninth)Amendment Act of 2014 is found void and unconstitutional.
3. The National Judicial Appointments Commission Act of 2014 is found invalid and unconstitutional.
4. The collegium scheme, which existed prior to the Constitution (ninety-ninth) Amendment Act of 2014, is declared to be operational for the appointment of judges to the Supreme Court, Chief Justices and judges to the High Courts, and the transition of Chief Justices and judges of High Courts from one High Court to another.
Concluding Analysis
In the previous order of the present petition by the Supreme Court Advocates-on-Record Association and Senior Advocates of the Supreme Court of Appeal, the 99th Constitutional Amendment was overturned by the long-drawn battle between the Legislature and the judiciary to get control of the appointment of judges at the Higher Judiciary. Supreme Court struck down the National Judicial Appointments Commission, 99th Constitutional Amendment, was declared unconstitutional because it violated the principle of judicial independence enshrined in the constitution’s basic structure and took charge of the appointment process.
This followed a long-running controversy in the case of S.P. Gupta v. Union of India⁸, also known as the First Judges Case, in which a three-judge bench upheld the executive’s supremacy over the appointment of judges with the power to overturn the CJI’s recommendations.
Then, in Subhash Sharma v. Union of India⁹, the bench referred the case to a higher bench, citing the complexities of the case and the need for a binding and authoritative decision. The Supreme Court bench in Advocates on Record Association v. Union of India found the issue of judicial independence and granted the CJI the power to nominate judges after consulting with two of the court’s most senior judges.
However, the judgment’s ambiguous and contested findings prompted then-President K.R. Narayanan to file a Special Reference №1 of 1998¹⁰, in which the Supreme Court explained that the judiciary will have primary appointment authority, which will be passed according to the provisions of appointment. However, in 2013, the government passed the 99th amendment, which was followed by the NJAC Act, to enact the Law Commission report, which proposed the formation of a 5-member committee, with a majority of members being senior-most judges, to make judicial appointments. But, citing equality, the act changed it and established a 6-member committee with half-representation from the judiciary and half-representation from the executive.
As a result, the court struck down the amendment and NJAC act in the previous order of the current case as violating the principle of separation of powers and judicial independence. The bench devised the collegium scheme, in which the CJI, in collaboration with four senior-most members, recommends names for admission to the judiciary, with no other candidates being considered. However, since the system was new, it needed a lot of scrutiny and surveys, necessitating the submission of suggestions to make the collegium system more effective and transparent.
…
The above case was decided Before The Hon’ble Supreme Court Of India on October 16, 2015; before the presiding Bench of J.S. Khehar, Jasti Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ.
______________________________
[1] National Judicial Appointments Commission Act of 2014, №40 Acts of Parliament, 2017(India).
[2] (2016) 5 SCC 808, at pg 812, 813.
[3] S.P. Gupta v. Union of India, AIR 1982 SC 149.
[4] Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268.
[5] AIR 1999 SC 1.
[6] Subhash Sharma v. Union of India, (1991) 1 SCC 574.
[7] Supra note 3.
[8] Supra note 3.
[9] Supra note 4.
[10] Supra note 3.
The author is a Year I, B.B.A. LL.B (Hons.) student at the Symbiosis Law School, Pune.
Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only, and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution, but only the views of the author concerned.
