Judicial Primacy and Basic Structure (2015) PDF

APPOINTMENT OF JUDGES Judicial Primacy and The article makes two main arguments. First, drawing from Just...

APPOINTMENT OF JUDGES Judicial Primacy and The article makes two main arguments. First, drawing from Justices Khehar and the Basic Structure Goel’s views, it argues that there is no sound normative reasoning in their opinions as to why primacy of judges in A Legal Analysis of the NJAC Judgment appointment of judges is part of the basic structure. Further, irrespective of the merits of the reasoning, it cannot be the Arghya Sengupta ratio decidendi of this case that judicial primacy is part of the basic structure T This article is a legal analysis of he Supreme Court of India in since only Justices Khehar and Goel have the Supreme Court judgment in Supreme Court Advocates-on-Record held it to be so. Thus it lacks the clear Association and others vs Union of majority of three judges necessary to be the appointment of judges case. It India and others (hereinafter, “the NJAC binding in law as precedent. Second, the argues that a majority of the case”) struck down the Constitution (99th net effect of the four majority views is judges did not hold judicial Amendment) Act, 2014 (hereinafter “99th to render a portion of Article 124 and primacy to be part of the basic Amendment”) and the National Judicial Article 217, in substance, unamendable. Appointments Commission Act, 2014 Articles 124 and 217 deal with appoint- structure, as has been commonly (NJAC Act) as unconstitutional. These two ment of judges to the Supreme Court misunderstood. Further, their enactments had collectively established and High Courts respectively and lay application of their understanding the National Judicial Appointments Com- down a process of mandatory consulta- of judicial primacy to strike down mission (NJAC). The commission was to tion to be adopted by the President have a determinative role in the appoint- in this regard. This judgment makes a the presence of the Union Law ment of judges to the Supreme Court and segment of such mandatory consultation, Minister and eminent persons on High Courts. Its establishment by Parlia- that is, the requirement to consult the the National Judicial Appointments ment was in response to the criticisms Chief Justice of India (CJI), part of the Commission is flawed. of the previous collegium method of basic structure of the Constitution and appointments, by which senior justices consequently immune to amendment. Consequently, the judgment has of the Supreme Court had the last word This makes the NJAC judgment per no precedential value were on who occupied judicial office. The per- incuriam the judgment of 13 judges of the Parliament to attempt fresh ception of nepotism, opacity and judicial Supreme Court in Kesavananda Bharati vs reform to bring in transparency in hegemony in appointments was sought State of Kerala (hereinafter “Kesavananda to be undone by a bipartisan NJAC. Bharati” (1973) 4 SCC 225), which specifi- judicial appointments. However, it was not to be. The Consti- cally permitted any provision or part of tution bench of the Supreme Court, by a the Constitution to be amended. Thus the majority of 4:1 (Justices Khehar, Lokur, judgment has no precedential value for fu- Goel and Joseph in the majority; Justice ture cases in Court. Similarly, were Parlia- Chelameswar dissenting), found the NJAC ment to consider fresh amendments to the to be violative of the basic structure judicial appointments process, this judg- doctrine and hence unconstitutional. ment would be of limited consequence. Much has been written on the distrust of the political class, specifically the Primacy: Part of Basic Structure? present government, that animates the Justice Khehar in his judgment strikes views of the majority judges. To what down the 99th Amendment for violating extent such distrust exists, and whether judicial primacy and thereby abrogating its expression in a constitutional law the basic structure of the Constitution dispute is justified, are important ques- (para 158). The key reasoning he provides tions, but not the subject of enquiry of as to why judicial primacy is part of Arghya Sengupta ([email protected]) this article. Instead the article is a critical the basic structure is twofold. First, is research director, Vidhi Centre for Legal Policy and has a DPhil on the subject enquiry into the concept and application Articles 124 and 217, dealing with appoint- “Independence and Accountability of the of the primacy of judges in the appoint- ment of judges to the Supreme Court and Indian Higher Judiciary” from the University ment of judges, which is central to the High Court, respectively, have been inter- of Oxford. He appeared for the Union of India Court holding the NJAC to be violative of preted by the Court as requiring judicial in the NJAC case. the basic structure. primacy to protect judicial independence Economic & Political Weekly EPW NOVEMBER 28, 2015 vol l no 48 27 APPOINTMENT OF JUDGES in appointments. Second, that a long- the Constitution ceases to be itself, the primacy that has befuddled judges since established practice of according primacy concept of an evolving basic structure is Justice Tulzapurkar’s passionate but to the opinion of the CJI has existed. an anomaly. This is especially because unhelpful endorsement of the concept in Justice Goel, who follows a similar line the basic structure doctrine is essentially the process of appointing judges in SP of reasoning, supplements this view by a limitation on the amending power of Gupta vs Union of India (The First Judges’ helpfully spelling out what is meant by Parliament—if at any given point of time Case; 1981 Supp SCC 87). For Tulzapurkar J primacy—the power to initiate a propos- it is not known to Parliament what it is in his dissenting judgment, the converse al for appointment and the last word on expected to adhere to, then that raises of lack of executive primacy, which he who should/should not be appointed serious questions about whether the rule felt would violate judicial independence should both belong only to the judiciary. of law is morphing into a rule of men, in and that his brother judges in the majority Both judges also explain why such judi- this case—judges. This paradox of an were perceived to have upheld, would be cial primacy is perfectly consistent with evolving basic structure is a legacy of primacy of the CJI. the views of Ambedkar expressed in the this judgment and one whose detrimental However this inference is flawed Constituent Assembly. effect on the rule of law, another pillar and flows from a misreading of the of the same basic structure, has not been majority view in The First Judges’ Case Three Grave Flaws fully appreciated. (Justices Bhagwati, Fazl Ali, Desai and There are three grave flaws in such rea- Third, the attempt by Justices Khehar Venkataramiah). The majority did not soning. First, the fact that Articles 124 and and Goel to demonstrate why primacy assert untrammelled executive primacy, 217 have been interpreted by the Su- of the judiciary is consistent with the as has been commonly misunderstood preme Court to require judicial primacy to spirit of Ambedkar and the Constituent since. On the contrary, they held that protect judicial independence in appoint- Assembly debates is baffling. It is un- neither the executive nor the judiciary ment cannot per se make primacy part of doubtedly true that the purpose of incor- should have pre-eminence in the matter the basic structure of the Constitution. If porating the provision of consultation of appointment of judges. The view of the that were so, then the fact that the right with the CJI in the appointment of judges CJI should ordinarily be accepted by the to sleep without undue disturbance from was to prevent an unfettered role for the President, but if not, reasons would have to the state has been held to be part of the executive. However there is a considera- be provided why not so. This is consistent right to life under Article 21,1 which is ble logical distance to traverse between with the views adopted by the Supreme part of the basic structure,2 should by the the lack of executive primacy in appoint- Court earlier, in different contexts, in Union same logic make such right to sleep a part ment of judges, which Ambedkar clearly of India vs Sankal Chand Sheth ((1977) 4 of the basic structure. Though this infer- intended, and judicial primacy being SCC 193; transfer of judges) and Shamsher ence is absurd, resting an argument of part of the basic structure of the Consti- Singh vs State of Punjab, ((1974) 2 SCC 831; the components of the basic structure tution, which was not even within the appointment of subordinate judges). doctrine simply on how particular provi- purview of discussion in the Constituent Such a view also conforms with the sions of the Constitution have been inter- Assembly. Further, even though the CJI salient rule of administrative law that preted over time is equally absurd. Further was brought into the appointments pro- the decision of the President, who as per normative reasoning is needed as to why cess to provide an apolitical view on the Articles 124 and 217 is the appointing particular interpretations will comprise person sought to be appointed, Ambedkar authority, would be judicially reviewable the basic structure whereas other inter- is clear that it would be “dangerous” to for being based on improper purposes, pretations will not. The majority views, give him/her a veto over appointments irrelevant considerations or being simply however, shed no light on what such ar- (Constituent Assembly Debates, 24 May arbitrary. In this context, primacy was an guments might look like. 1949). If judicial primacy, as Justice unhelpful, and erroneous, introduction Second, even if it were to be assumed Goel points out, includes the last word, to the jurisprudence of judicial appoint- that an additional factor that makes then that is tantamount to a veto, and ments. Justices Khehar and Goel have judicial primacy in appointments part of squarely contrary to Ambedkar’s view. compounded this error by simply raising the basic structure is its long-established The only possible counterargument to it to the status of the basic structure of practice, there is a further logical fallacy this view is that the veto now belongs to a the Constitution without providing any which besets this argument. If practice, judicial collegium rather than the CJI as an convincing justification. over a period of time, can determine individual as Ambedkar meant. But such To the contrary, and something not whether any particular value, in this an argument would require a defence of widely noticed, Justice Lokur has refused case, judicial primacy, is to be part of the the judicial collegium, which was entirely to consider primacy to be part of the basic basic structure, then the question that unheard of till the early 1980s, as part of structure of the Constitution. In fact, he arises is whether the basic structure is as the original constitutional scheme. Even has expressed his discomfort with the basic as it purports to be. Given that it is to the most ardent defenders of the colle- concept of primacy and has instead a well-established doctrine of constitu- gium, this is an interpretive step too far. considered appointment of judges a tional law that the basic structure is that In the final analysis, Justices Khehar “shared responsibility” of the executive core of the Constitution without which and Goel walk into the same trap of and the judiciary (footnote 357, para 177). 28 NOVEMBER 28, 2015 vol l no 48 EPW Economic & Political Weekly  APPOINTMENT OF JUDGES Further, Justice Joseph has not opined on legislation, were the NJAC Act to be premised heavily on the eminent persons primacy at all. He has simply endorsed the struck down. Hence to strike down the exercising a veto, which is indefensible views of his brother judges, who have incorporation of eminent persons and for the reasons argued above. Even expressed diametrically opposite views the Union Minister of Law primarily otherwise, they find the lack of qualifi- on it (p 901). As a result, the most logical because they will have the power to cation of eminent persons to be vague inference from the lack of clarity on this collectively veto what the judges say and hence unconstitutional. If vagueness matter is that there is no unambiguous (assuming they speak in one voice) is were to be a ground for striking down majority view in the NJAC judgment that plainly flawed. constitutional amendments then as Justice primacy of judges in appointment is part This difference apart, Justice Lokur is Chelameswar rightly notes in his dissent- of the basic structure of the Constitution. one with Justices Khehar and Goel in ing judgment, it “amounts to judicially finding the presence of the law minister mandating inflexible standards of consti- Abstruse Legal Reasoning on the NJAC as violative of independence tutional drafting” (para 111). Despite expressing his discomfort with of the judiciary. Though his argument is It is judicial impropriety to strike primacy, Justice Lokur in a surprising largely historical, the core reasoning, as down a constitutional amendment for and unjustifiable move considers the elaborated by Justice Khehar, essentially being vague without even attempting to 99th Amendment and NJAC Act to be a hinges on a conflict of interest issue— read it down, irrespective of what the “package deal” as the attorney-general given that the government is the largest parties have argued. Fortunately, how- had remarked. He then proceeds to deal litigant, it is anomalous to have the law ever, Justice Lokur does not share this with the composition of the NJAC (in the minister having a role in judicial selec- view and expressly allows eminent per- amendment) together with the proce- tion, especially if he can, together with sons, of whatever qualification, to serve dure for voting, including the veto power one other member, exercise a veto on on the NJAC. His “real cause for unhappi- to any two members of the NJAC (in the such selection. Keeping the issue of ness” (para 509) as pointed out earlier is NJAC Act) to strike down the 99th veto aside, since it conflates issues of in giving eminent persons the veto. With Amendment (para 451). composition and procedure, the conflict Justice Joseph having expressed no firm Justice Lokur’s primary reason for of interest argument is prima facie an view in this matter, consequently there striking down the 99th Amendment is attractive one. is no majority view in this judgment not because it violates judicial primacy It is true that the union government insofar as inclusion of appropriately but rather because non-judicial members is the largest litigant in India, as are qualified eminent persons as equal parti- have a veto which abrogates the scheme national governments in other parts of cipants in a future NJAC. of the original Article 124 that envisaged the world. At the same time it is a plati- What is disconcerting about the discus- mandatory consultation with the CJI. tude that justice delivery must be fair sion of eminent persons is the implicit This inference is made possible by Justice and impartial. The only sequitur to this belief that only judges are best able Lokur’s package deal metaphor. While can reasonably be that the executive to select future judges. While this is Justice Lokur is correct in attributing the cannot have a determinative role in certainly arguable, it is by no means phrase “package deal” to the attorney- judicial selection. beyond the pale of contestation. One can general who had used the term to de- The presence of the law minister as argue perfectly reasonably that there is scribe the two enactments, he is mistaken one member out of six on the NJAC does little point in having a technically profi- in using this as an aid to striking down not give the government a determinative cient judge who is of doubtful integrity the constitutional amendment based on role in selection at all. Further, there is or a judge perfectly capable of appreciat- a provision in the NJAC Act. The key no principled distinction between the ing complex legal argument but no ability flaw is evidenced by his statement in law minister providing inputs (which to manage time or people. The complete paragraph 451: Justice Lokur expressly allows, para 523) lack of normative reasoning as to why It was therefore a ‘package deal’ presented and having a single vote as the 99th it is primarily judges who can assess to the country in which the 99th Constitu- Amendment provided. Either a conflict such holistic qualities in future judges, is tion Amendment Act and the NJAC Act were of interest principle will prevent any role conspicuous by its absence. Specifically so interlinked that one could not operate in which case both are prohibited, or a the summary dismissal of comparative without reference to the other. determinative role, which the law minister examples from other countries which While the NJAC Act cannot operate anyway did not have in the 99th Amend- consider it worthwhile to incorporate without reference to the 99th Amend- ment. There is no principled halfway civil society participation in judicial ap- ment, the converse is simply not true. house between the two. pointments, is striking. This is aptly One can envisage a situation when the Insofar as the presence of eminent demonstrated by Justice Lokur’s infer- Constitution requires all appointments to persons on the NJAC is concerned, the ence from a reading of the unamended be made by the President on the recom- majority judges are in clear disagree- provisions of the Constitutional Reform mendation of the NJAC. The procedures ment. Justices Khehar and Goel strike Act, 2005 in England. and other details of the NJAC could be down their presence for being violative of Justice Lokur holds, on the basis of established by regulations or a future judicial primacy. Again their argument is select legal literature, that despite a Economic & Political Weekly EPW NOVEMBER 28, 2015 vol l no 48 29 APPOINTMENT OF JUDGES commission mandated to include non- precludes a detailing of the reasons for Goel hold it to be so, Justice Lokur does legally qualified persons selecting judges, this view. However this ratio was specifi- not. Justice Joseph, the fourth majority it is impossible to contravene the wishes cally overruled by a 13-judge bench of the judge simply endorses the views of the of the judiciary in appointment. It is Supreme Court in Kesavananda Bharati, others without expressly considering precisely this inference which when which held that no part or provision of primacy to be part of the basic structure. translated to India ought to have led to the Constitution could be immune from Thus there is no majority holding in this the conclusion that the NJAC having amendment, subject to the basic structure case that primacy of judges in appoint- only two eminent persons out of six as of the Constitution being preserved.3 It ment is part of the basic structure. Second, members would not affect the determi- was also clear that the basic structure Justice Lokur’s concurring view which native view of the judiciary. Curiously, would have to be drawn from various rightly traces the source of judicial primacy however, Justice Lokur’s conclusion is provisions of the Constitution and could in appointment to the exalted role played rather cryptic: “So much for the appoint- not make any particular textual provision by the CJI hitherto in the appointments ment process in the UK and the ‘judges or part thereof, immune to amendment. process, a view shared by the remaining appointing judges’ criticism in India!” The NJAC judgment, in effect, canvasses majority judges, makes a portion of Arti- (para 477). It is difficult to engage with a proposition analogous to the proposition cles 124 and 217 itself the basic structure an exclamatory remark of this nature as in Golak Nath overruled by Kesavananda. of the Constitution. This is per incuriam a matter of constitutional law. This is because it finds the basic structure Kesavananda Bharati and hence has no to be the mandatory process of consulta- precedential value. Taken together, both Golak Nath Revisited tion with the CJI, enshrined in Articles 124 these conclusions make it legally tenable The usage of the veto argument to strike and 217. As a consequence, the relevant for Parliament to propound a similarly down the 99th Amendment is flawed for part of both articles cannot be altered constituted judicial appointments com- another reason. Since Justice Lokur does by constitutional amendment. Hence, in mission in the future, with minor chang- not subscribe to the basic structure effect, it renders the mandatory process es, disregarding the elaborately reasoned doctrine, including judicial primacy in of consultation between the President views of the majority judges on judicial appointment, there is no question of the and the CJI in Articles 124 and 217, that is, primacy and the basic structure. veto affecting such primacy. In fact, what one portion of these provisions, immune Finally, in view of the questionable it does affect is the mandatory consultation from amendment. reasoning, non sequiturs and unsubstan- between the President and the CJI and the It must be admitted that it is however tiated assertions that suffuse the majority predominant role given to the CJI by the different from Golak Nath in one respect— views in a decision of such great consti- drafters of the Constitution. This amounts it does not prescribe a blanket bar on tutional significance, history will likely to a view that mandatory consultation amendment of an entire part of the Con- rank it at par with ADM Jabalpur vs Shiv- between the President and the CJI is part stitution (Part III, as was the case in Golak kant Shukla ((1976) 2 SCC 521), the Su- of the basic structure and cannot be altered Nath). However, this difference is irrele- preme Court’s humiliating genuflection (para 530). This is a proposition that is vant since the effect of the judgment is before the government during the Emer- one with the basis for Justices Khehar analogous. Take a thought experiment—if gency, as one of the most poorly reasoned and Goel’s views (consequently, one can Parliament were to amend Article 124 to judgments handed down by the Court. conjecture, endorsed by Justice Joseph), remove mandatory consultation with the Whereas ADM Jabalpur was the conse- that the original constitutional scheme CJI and replace it only with concurrence quence of too little independence, the enshrined in Articles 124 and 217 consid- of the three senior-most judges of the NJAC judgment is the consequence of too ered mandatory consultation between the Supreme Court not including the CJI. Fol- much of it. Both, as is clear today, are President and CJI to be of paramount im- lowing the logic of this judgment, though equal enemies of introspection and portance. Had this foundation not existed, judicial primacy would be maintained, sound legal reasoning. no possible proposition of judicial primacy it is arguable that this amendment too in appointments could have arisen. would violate the basic structure for tak- Notes Hence per se this scheme of mandatory ing away mandatory consultation with the 1 In re: Ramlila Maidan Incident (2012), 5 SCC 1, para 318 (Per Chauhan J). consultation between the President and CJI and his historical and conventional 2 IR Coelho vs State of Tamil Nadu (2007), 2 SCC 1. CJI laid down in the unamended Articles role in appointments. Thus, in effect, this 3 Proposition (vii), Summary of Conclusions, para 1537, also in opinion of Khanna J, para 1434. 124 and 217 would be part of the basic judgment renders a key portion of Articles structure of the Constitution. 124 and 217, in substance, unamendable. It is this proposition that makes the NJAC judgment analogous to the ratio in Conclusions available at Golak Nath vs State of Punjab (hereinafter There are three conclusions from a close Delhi Magazine Distributors Pvt Ltd “Golak Nath”; AIR 1967 SC 1643). In Golak legal analysis of the judgment: First, judi- 110, Bangla Sahib Marg Nath, an 11-judge bench of the Supreme cial primacy has not been unambiguously New Delhi 110 001 Court held that no fundamental right held to be part of the basic structure of the Ph: 41561062/63 could be amended by Parliament. Space Constitution. Though Justices Khehar and 30 NOVEMBER 28, 2015 vol l no 48 EPW Economic & Political Weekly