Updated: Jun 22, 2020
Author: KARMAN KAUR,
Amity Law School, Delhi
The tussle between the Judiciary and the Executive has been long present in the history of judicial events. It can be traced back to the period of emergency and recently, in 2015 and 2016 with the emergence and dissolution of National Judicial Appointment Commission (NJAC). The confidence of each of these organs of government is precarious. The appointment of judges is one such area where the executive and judiciary are at crossroads. The question of primacy has often been prejudicially addressed which have reverberated over these years. It is essential to highlight the uncertainty of the powers which lie on the borderline of judicial independence and judicial accountability.
For a democracy to be successful, an independent judiciary is the utmost important part. The judicial appointment of judges over the years has always been an undeniable controversial question between the raging authority of judiciary and executive. This tussle finds its footprints back to the history of the Constitution where the constitution-makers desired equal separation of power. On July 29, 1947, the Constituent Assembly was bested by the issue of whether the power to appoint and remove judicial judges rest with the judiciary or the parliament? After much debate, the opinion of Sir Alladi Krishnaswami Ayyar, former Advocate General of Madras State, prevailed and it was concluded that both Houses of Parliament while acting on an impeachment notice, would exercise this power. It was believed that this provision won’t be utilized. Little did they anticipate that it would transpire on the pages of judicial events.
INTENT OF CONSTITUTION-MAKERS:
Dr. Ambedkar summed down the three issues which prevailed with regards to appointment of judges. Firstly, the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. Secondly, the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and thirdly, that they should be appointed in consultation with the Council of States. He sought to pave out a middle way solution to this problem and it is hence that we find out the original intentions of the fathers of our Constitution.
The conclusion of all the discussions made and done which should be inferred in the present provision of Article 124(1) is that no absolute power can be transferred to any constitutional functionary. It is against the very basic tenets of the rule of law. Hence it is the consultative process between the Constitutional functionaries which affects and finally brings about the appointment of judges, thus ensuring the independence of judiciary in a democratic nation.
The role of the judges is to adjudicate. However there are many other responsibilities of judges which include transfer and appointment of judges. The executive and judiciary have often debated about the collegium system which includes the Chief Justice of India and five other senior judges. It is believed the collegiums system has influenced the morality of many judges. Many unreasonable and arbitrary practices had crept in the appointment procedure. Nepotism and favoritism was one of the reasons that the appointment process has been distorted.
EVOLUTION OF NJAC:
The senior most judge of the Supreme Court was made the CJI and the executive respected the constitutional convention of appointing the senior most judges a CJI. But In 1973, this process was intentionally violated and Justice A.N. Ray was made CJI superseding three senior most judges. This was the beginning of the application of ‘committed judges theory.’ A similar situation arose in 1977 when Justice H.R. Khanna (the senior most judge) gave his dissenting opinion against the government in ADM Jabalpur case. Due to which he was not made The Chief Justice of India. This was one of the worst attempts to neutralize the ‘independent judges theory’.
The appointment of judges was primarily done by the executive in consultation with the judiciary under Article 127 and 217 of the Constitution. This was reiterated in the first judges case. The tussle between the Judiciary and the Executive reached its peak in the very famous case of S.P. Gupta v. Union of India.
This led to a few controversial appointments done by the executive which again led to the question whether the independence of the judiciary was being compromised. But the 2nd Judges case nullified and overturned the effect of the S.P. Gupta case and the system of collegium was conceived. Followed by the second judges case and third judges case, it was clear now that the judiciary has the sole power to appoint the judges.
The majority decision in 2nd Judges case was that if there is a conflict between the collegium and the executive, there should be an effort to reach a unanimous decision, if it is not attainable then primacy of the collegium will be followed by a healthy recommendation and the executive will have to agree with the recommendation.
The 3rd Judges case reiterates with the views expressed by the majority in the 2nd Judges case. The general rule is that the appointment shall be made on a general consensus within the collegium. No appointment can be made without the affirmation of the Chief Justice of India. However if the question arises of Chief Justice of India being in minority and the majority of senior most judges disfavors the particular appointment, then the problem ensues. The majority judgment in the 2nd Judges case very aptly has given a solution to such a logjam situation.
The purpose of National Judicial Appointment Commission (NJAC) was to bring complete transparency in the process of appointments and transfer of judges. In 2014, the 99th amendment added Articles 124A, 124B and 124C after article 124. Hence the amendment was solely to expedite National Judicial Appointment Commission. By implementing the articles and defining the composition of the Commission, this amendment gave birth to the constitutional character of National Judicial Appointment Commission.
The legislature’s intent was to bring more transparency to judicial appointments and to create a balance to the system. Therefore, it enacted the National Judicial Appointments Commission Act, 2014 and the Constitution (Ninety-Ninth Amendment) Act, 2014. However, the act was declared unconstitutional by the Supreme Court violating the basic structure of the Constitution.
On 16th October, 2015 the judiciary struck down the 99th Constitutional Amendment of 2014 in the Supreme Court Advocates on Record Association v. Union of India (4th Judges case) in 4:1 majority, an event which is celebrated by many pro-judicial independence supporters and frowned upon by those who believed democracy to be the heart and soul of the Constitution.
The problem with NJAC was that firstly, the insertion of Article 124C in the Constitution by the 99th Amendment was clearly unconstitutional. The very wordings of the article lead to the presumption that the executive will have predominance in the appointment matters. There was uncertainty about the words “prominent persons”. Questions were raised as to who would fall under this category and who would have the power to decide such persons. Article 124C explicitly states that the regulation of appointment shall be done by the Parliament. These statutory provisions empower the Commission to set out regulations for the procedure for the discharge of the functions, the manner of selection of persons for appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and such other matters as may be deemed necessary by commission.
According to Section 4 of the National Judicial Appointment Commission was made the initiator of the proceedings of the appointment of judges which was contrary to the earlier system wherein the CJI had the power to do so. The Memorandum on the Appointment of Judges, 1999 had clearly laid down that the Chief Justice of India would be the initiator in the proceedings of appointment of judges.
Another problem with Article 124 was that it was amended to include “procedure as Parliament may, by law, prescribe”. It was stated that this is a direct violation of the basic structure of the Constitution as the procedure could be changed by a simple majority in Parliament as opposed to the requirement earlier wherein a special majority had to be achieved for constitutional amendment.
The number of judicial persons had been brought down from 5 to 3 judges. It reduced the judicial authority and not only that it also added eminent persons to the committee and only one representative from the judiciary, being the CJI. Therefore, the number of non judicial authorities are greater than the judicial authorities and thus, it does not form a reliable panel for appointing judges.
The NJAC also stated that a recommendation cannot be made if any two persons do not allow it. It stayed silent on the position of CJI on appointment or recommendation in such scenarios contrary to the collegium's system where CJI had a major role to play and his recommendations and opinions were held of utmost importance. So if a prospective judge is recommended by the three members of the collegium and law minister then the two eminent persons have the power to neutralize it. Non judicial members have an exceedingly dangerous power to dominate in this veto process of appointment of judges. This directly hampers the independence of judiciary. In the 4th Judges case (NJAC judgment) this was one of the most objectionable rationale of the majority.
The federal characteristic of the appointment of High Court judges has also been watered down to a very great extent. The constitutional amendment has upgraded the presence of central executive and downgraded the presence of State executive.
The judgment found its way to uphold the collegium structure as the primary tool to the independence of judiciary which is a basic structure of the Constitution, but it raises a few questions which are critical to the judiciary’s role. One view holds that this verdict upholds an extra constitutional device created by the Supreme Court’s own members to meet its own ends rather than accepting a system lawfully enacted by a popular elected Parliament. The judgment may be celebrated for the fact that it has upheld the independence of judiciary as the basic structure of the Constitution and it is a well established fact now that the basic structure of the Constitution cannot be violated or be taken away. It establishes the fact that the role of executive should be there, but in a limited nature so that it does not hamper its independence. The judiciary is to be the sole determinant of the various components that can be the part of the basic structure of the Constitution. The platonic shifts in the relationship between judiciary and executive are necessary to define powers keeping in mind it should not affect the legitimate expectations of the public and also protect the basic structure and the will of the lawmakers.
 A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
 AIR 1982 SC 149.
 AIR 1982 SC 149.
 Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441, hereinafter referred as 2nd Judges case.
Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441, hereinafter referred as 2nd Judges case.
Supreme Court Advocates on Record Association v. Union of India, (2015) 11 Scale 1.