BASIC STRUCTURE AND THE NJAC (Fourth Judges Case)

By: Group One

The weightage of the powers in judicial appointments, traced historically, have had a shift from the hands of the executive to the judiciary. The National Judicial Appointments Commission (NJAC) was a body set up to replace the existing collegium system in India. The NJAC came into force through the 99^thamendment of the Constitution and the National Judicial Appointment Commission Act, 2014. The Amendments included the Articles 124 A, B and C which control the existing, regulation and functioning of the new system of appointment.  On the passing of the Act in both the houses, several key stakeholders in the legal field criticized the new system of appointment citing the dominance of the will of the executive over the judiciary. Consequent to this, the Court in its 2015 judgement (4^thJudges Case)held the Amendment unconstitutional as it violated the Basic Structure of the Constitution. In the following paragraphs, I will discuss group nine’s analysis of the NJAC’s constitutionality with respect to the Basic Structure of the Constitution.

Indian Politics and Judicial Appointments

The thesis of the of the presentation in this section lay in the assumption that the Supreme Court has become tied with politics. Two significant eras are said to have shaped this turn towards a political nexus: 1.) The Gandhi Era and 2.) The Desai Era.

The autocratic rule of Indira Gandhi, during what is often termed as the ‘darkest age’ lead to the enormous agony suffered by the Judiciary. Judges bent to their leader’s will because of a fear of persecution which lead to a significant political influence on judicial decisions. An important judgement that came out during the end of this period signifying a light in the end of the tunnel was Keshavananda Bharathi v. State of Kerala.

In the Desai Era, though the political nexus was reduced by a significant bit, it still existed. In the infamous Dissolution Case, a decision was passed to invalidate nine Congress State governments on the Janta’s party pursuance of the issue. Political and Legal commentators have significantly questioned the reasoning behind such a decision and the effect has often been one of perceiving the nexus as a visible one.

Judicial Appointments in India

Judicial appointments in India have changed significantly, in method, since their original form. The debate resting primarily on the power struggle between the executive and judiciary has been divided into the Four Judges Cases. In the following section, I will describe the legal position held before the 99^thAmendment through the two judges cases to provide some clarity on the Basic Structure Debate in the NJAC judgement.

The First Three Judges Cases

The NJAC when proposed would be the third major reform to the appointment’s system. Initially, as per the old Article 124, the method of deciding the appointment of judges was for the President of India to hold appointments after consultation with the Chief Justice. Then, in Supreme Court Advocates- on Record Association vs. The Union of India, also known as‘theSecond Judges Case’, the word consultation was held to have the same meaning as concurrence. In that case the Court was reconsidering its decision in S.P Gupta v. Union of India. Also known as the First Judges Case, there it was held that the executive had complete primacy over judicial appointments as opposed to the judiciary. 

In their analysis, the judges reasoned that the Chief Justice must be given primacy over the Executive in matters related to appointment as it is the former who will be able to assess the capabilities of the new appointee with greater precision. It was further said that the role of both the judiciary and executive must be analyzed in degrees and it must be seen which better subserves the constitutional purpose. In the Third Judges Case, detailed powers limiting the extent of the power of the executive in interference with matters of appointment were listed. One of the key limitations served was the rule that if the collegium insisted on raising a particular candidate, the executive would have to appoint said candidate.

The above cases were taken to have tremendous precedential value in the Fourth Judge’s Case. The controversy arose in the question whether judicial primacy could be held to be a part of the Basic Structure.

The NJAC Judgement (Fourth Judges Case)

In 2014, the NJAC Act was enacted by Parliament to bring in a significant executive presence in the collegium system by including the influence of the Prime Minister and leader of Opposition. The Court, before looking at the Act, analyzed the constitutionality of the amended Articles 124 A, B and C which set up the new system of judicial appointments.

In the NJAC judgement, the decision before the Court lied in the questioning of two aspects of the Basic Structure of the Constitution: firstly, whether there was an infringement of judicial primacy by the new Act and secondly, if this sort of infringement could constitute a violation of the Basic Structure in India.

The majority opinion in the case, clearly held that judicial primacy in appointments was a stated rule through various precedents. Secondly, by referencing the third judge’s case, he showed that the executive had powers of limitation over judicial appointments. On an analysis of the Constitution assembly debates as well, it was shown that the Constitution had a significant levitation towards the judiciary. Dr. Ambedkar’s opinion during one of the decision was cited where it was said that the word ‘consultation’ was used in order to ‘curtail’ the will of the executive. Thus, Ambedkar’s statement has had a crucial effect on deciding.

On a reasoning based on the current and past political situation of India, the judges have used dangers of a political-judicial connection to reject the constitutionality of the amendments as violative of the basic structure and therefore, the constitutionality of the Act.

Gautham Bhatia, a key researcher on the Union of India’s side in this case has criticized the decision heavily on two aspects. Firstly, he criticizes the interpretation of the judge’s on the word ‘curtail’ used by Ambedkar.  The word curtail in its interpretation would mean to decrease the power of interference of the executive and not completely absolve it. His argument is that the current collegium system has zero interference from the executive and has totally absolved their powers which is opposite to the intent of the legislature as inferenced from the constitutional assembly debates.

His second argument lies in the fact that none of the previous Judges Cases had specifically mentioned that judicial primacy was a part of the Basic Structure of India. All the precedent cited by the Courts only laid down the primacy of judicial appointments and not its specific existence as part of the Basic Structure. 

Conclusion

Thus, by striking the 2014 Amendments and Act as violative of part of the basic structure, the scales have tipped to the favor of the judiciary in judicial appointments. One side argues that nepotism in the judiciary itself could lead to a problem whereas the winning side (for now) says that the political-judicial nexus is too strong a one to ignore. Unless challenged again on the basis of its reasoning, the holding of judicial primacy in appointments as a part of the Basic Structure will allow the judiciary to maintain its status as the highest decision-making authority in the country.