Various Developments vis-a-vis Constitution (Ninety-ninth Amendment) Act, 2014 (NJAC)

Historical Background vis-a-vis Appointment of Judges

(i) Samsher Singh v. State of Punjab, (1974) 2 SCC 831 – five-Judge Bench,
(ii) Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193
–  five-Judge Bench,

(iii) S.P. Gupta v. Union of India, 1981 Supp SCC 87 –
seven-Judge Bench,
(iv) Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 – nine-Judge Bench, and
(v) Re: Special Reference No.1 of 1998, (1998) 7 SCC 739 –
nine-Judge Bench.

The manner in which Articles 124 and 217 were interpreted by this Court, emerges principally from three-Constitution Bench judgments –

  • The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981.
  • The correctness of the First Judges case was doubted by a
    three-Judge Bench in Subhash Sharma v. Union of India
    , which opined that the majority view, in the First Judges case, should be considered by a larger Bench. The Chief Justice of India constituted a nine-Judge Bench to examine two questions.
  • By a majority of 7:2, a nine-Judge Bench of Apex Court, in the
    Second Judges case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993.
  • Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its
    opinion. A nine-Judge Bench answered the reference unanimously, on 28.10.1998.
  • As a result,  the term “consultation” in Articles 124(2)
    and 217(1), relating to the appointment (as well as, transfer) of Judges of the higher judiciary, commenced to be interpreted as vesting primacy in the matter, with the judiciary.
  • The Union of India framed a Memorandum of Procedure on 30.6.1999, for the appointment of Judges and Chief Justices to the High Courts and the Supreme Court, in consonance with the above two judgments.

Supreme Court Advocates-on-Record –
Association and another v. Union of India

Relevant Constitutional and Legal Provisions involved

Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014.

The 99th Constitution Amendment Act  completely changed this
constitutional position and has changed the role of the President in the appointment process as also substantially modified the mandatory
consultation with the Chief Justice of India and substituted or replaced the entire process by a recommendation of the NJAC.

Chronology of Events 

7.4.2015 – Order passed by Three-Judge Bench of the Apex Court

13.4.2015 – Notification of Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act,     2014 in the Gazette of India (Extraordinary)

15.4.2015 -Hearing of the matter by 5 Judge Bench and reconstitution of the Bench

Date of Decision – 16-10-2015

Bench – Justices J S Khehar, MB Lokur, Kurian Joseph , Adarsh Kumar Goel and  Chelameswar.

Contentions of the Parties

(a) Petitioners

  • “Independence of the judiciary”, “rule of law”, “judicial review” and “separation of powers” are components of the “basic structure” of the Constitution. In the above view of the matter, provisions relating to appointment of Judges to the higher judiciary, would have to be such, that the above principles would remain unscathed and intact.
  • All the learned counsel representing the respondents had overlooked the fact, that the interpretation of Article 124 of the Constitution, was rendered in the first instance, by a seven-Judge Bench in the First Judges case. The law declared by this Court in the First Judges case, having been doubted, the matter was referred for reconsideration, before the nine-Judge Bench, which delivered the judgment in the Second Judges case. It was pointed out, that the prayer for revisitation, which is being made at the behest of the learned counsel representing the Union
    of India and the different participating States, was clearly unacceptable, because the legal position declared by this Court in the First Judges case had already been revisited in the Second Judges case by a larger Constitution Bench.
  • It was clearly beyond the purview of the Union of India, to seek a revisit of the Second and Third Judges cases.  It was not open to the Union of India and the State Governments, to require this Court to examine the correctness of the judgments rendered in the Second and Third Judges cases. Such a course could only be adopted, when it was established beyond all reasonable doubt, that the previous judgments were erroneous.

(b) Respondents

  • The conclusions drawn in the above judgments, needed a reconsideration by way of a fresh scrutiny, to determine, whether the conclusions recorded therein, could withstand the original provisions of the Constitution, viewed in the background of the debates in the Constituent Assembly. The determination rendered by the nine-Judge Bench in the Second Judges case, was not sustainable in law.
  • The method of appointment of Judges to the higher judiciary, was not the “be all” or the “end all”, of the independence of the judiciary. The question of independence of the judiciary would arise, with reference to a Judge, only after his appointment as a Judge of the higher judiciary.
  • The judiciary had taken upon itself, the exclusive role of making appointments to the higher judiciary, without taking into consideration any of the stakeholders. The relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented, in the manner indicated in the conclusions drawn in the Second Judges case.
  • It was impermissible in law, for a party to make a decision in its own favour. This is exactly what the Supreme Court had done in the Second Judges case. It was contented, that the impugned constitutional amendment was an effort at the behest of the Parliament, to correct the above historical aberration.
  • The advisory jurisdiction under Article 143, which had been invoked by the Presidential Reference made on 23.7.1998, requiring this Court to render the Third Judges case, was neither appellate nor revisionary in nature.
  • It was imperative for this Court to have a re-look at the two judgments, so as to determine, whether there had been a trespass by the judiciary, into the legislative domain. The conclusions drawn by this Court in the Second Judges case, and the Third Judges case, were liable to be described as doubtful, because a large number of salient facts, had not been taken into consideration, when the same were decided.

Decision of the Court – 

Jagdish Singh Khehar- 

  • The Memorandum of Procedure (available on the website of Ministry of Law) provides for participatory role, to the judiciary as well as the political-executive. Each of the above components are responsible for contributing information, material and data, with reference to the individual under consideration. While the judicial contribution is responsible for evaluating the individual’s professional ability, the political-executive is tasked with the obligation to provide details about the individual’s character and antecedents. (Para 65)
  • The judgments in the Second and Third Judges cases cannot be blamed, for not assigning a dictionary meaning to the term“consultation”. If the real purpose sought to be achieved by the term “consultation” was to shield the selection and appointment of Judges to the higher judiciary, from executive and political involvement, certainly the term “consultation” was meant to be understood as something more than a mere “consultation”. (Para 78)
  • It is therefore that a consultative process was contemplated under Article 124, as it was originally drafted. The same mandated consultation not only with the Chief Justice of India, but with other Judges of the Supreme Court and the High Courts. Viewed closely, the judgments in the Second and Third Judges cases, were rendered in a manner as would give complete effect to the observations made by Dr. B.R. Ambedkar with reference to Article 124 (as originally incorporated). It is clearly erroneous for the respondents to contend, that the consultative process postulated between the President with the other Judges of the Supreme Court or the High Courts in the States, at the discretion of the President, had been done away with by the Second and Third Judges cases. Nothing of the sort. Additionally, it is open to the President, to rely on the same, during the course of the mandatory “consultation” with the Chief Justice of India. (Para 80)
  • That the prayer made at the hands of the learned counsel for the respondents, for revisiting or reviewing the judgments rendered by this Court, in the Second and Third Judges cases, cannot be acceded to. The prayer is, accordingly, hereby declined. (Para 101)

Madan B. Lokur

The procedure for appointment of judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning.

Observations of the Court

  • Before embarking on the issue, namely, whether the judgments
    rendered by this Court in the Second and Third Judges cases, needed to be revisited, we propose first of all, to determine whether or not it would be justified for us, in the peculiar facts and circumstances of this case,keeping in view the technical parameters laid down by this Court, to undertake the task. In case, we conclude negatively, and hold that the prayer seeking a review of the two judgments was not justified, that would render a quietus to the matter. (Para 6)
  • The above sequence reveals, that the executive while giving effect to the procedure, for appointment of Judges to the higher judiciary (and also, in the matter of transfer of Chief Justices and Judges from one High Court, to another), while acknowledging the participation of the other constitutional functionaries (referred to in Articles 124, 217 and 222), adopted a procedure, wherein primacy in the decision making process, was consciously entrusted with the judiciary. This position was followed, from the very beginning, after the promulgation of the Constitution, by the executive, at its own. (Para 86)
  • The “manner of selection and appointment” of Judges to the higher judiciary, is an integral component of “independence of the judiciary”. (Para 93)

Events post-judgment

3-11-2015 – Hearing commenced considering the incorporation of additional appropriate measure if any, for an improved working of the “collegium system”.

5-11-2015-  A two-member the committee presented the compilation of the suggestions received up to 4th November 2015.

16-12-2015 – Guidelines for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case were issued by the Supreme Court.

27-02-2017 – Review petition filed seeking a declaration that the judgment dated October 16, 2015, passed by the Constitution Bench of the Supreme Court is unconstitutional and void.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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