In 47October 2015, the Supreme Court of India delivered one of its most significant judgments. By a 4:1 majority, it struck down the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (NJAC Act), which sought to replace the existing ‘collegium’ system of appointments to the higher judiciary with a new one.¹ For more than two decades, judges of India’s Supreme Court and High Courts have been appointed through the collegium system, which is in essence one of self-selection. That is, judges are appointed by a group of other judges from within the system. The NJAC Act proposed the establishment of the National Judicial Appointments Commission (NJAC), consisting of members of the judiciary, executive, and civil society, to replace the collegium system.

The Constitution of India does not mention the collegium system. It was created by and evolved through three Supreme Court judgments, which are collectively known as the ‘Judges Cases’. In S.P. Gupta v. Union of India,² the first of them, the Supreme Court held by a majority that the opinion of the Chief Justice of India in appointing judges to the High Courts need not be given primacy. The Court also held unanimously that President of India was not bound by the advice of the Chief Justice of India, and that ‘consultation’ did not mean ‘concurrence’.³ This judgment tilted the balance in the appointment process towards the executive. The judgment in the First Judges case was reconsidered by a larger bench in Supreme Court Advocates-on-Record Association v. Union of India,⁴ which prescribed a new procedure for appointing judges to the Supreme Court and High Courts. The Supreme Court overturned the First Judges case and held that the opinion of the Chief Justice of India was binding on the President of India and ‘consultation’ did amount to ‘concurrence’.⁵ 48Finally, in Special Reference No. 1 of 1998, re,⁶ the Supreme Court of India re-interpreted its judgment in the Second Judges case by clarifying who should (and not) be part of the ‘collegium’ and the question of ‘primacy’ of the Chief Justice’s opinion in case of disagreement with other collegium members. Through its decisions in the Second and Third Judges cases, the judiciary wrested control over judicial appointments from the executive.

On 16 October 2015, the Supreme Court pronounced as unconstitutional both the constitutional amendment that introduced the NJAC, and the NJAC Act, which prescribed its features and working, thus asserting judicial primacy in the matter of judicial appointments. It was in the wake of this development that Raju Ramachandran delivered DAKSH’s Fourth Annual Constitution Day Lecture at the Indian Institute for Human Settlements (IIHS) Auditorium, Bengaluru on Saturday, 28 November 2015, on the topic of ‘Judicial Independence and the Appointment of Judges’. Calling the NJAC judgment the most noteworthy feature of the year gone by (2015), he argued that it is completely contrary to the system of checks and balances which is inbuilt in the Constitution. Nonetheless, he opined, there is a silver lining: in wrongly asserting judicial primacy to be part of the independence of the judiciary, the court showed great independence against a powerful executive with a good majority in Parliament.

A transcript of Mr Ramachandran’s lecture follows.

In 1951, one year after we the people gave ourselves this Constitution, Jawaharlal Nehru said, ‘This magnificent Constitution that we have framed has been kidnapped and purloined by lawyers.’ When he said lawyers, he meant lawyers and judges. He meant the robed fraternity. Many kidnappings have happened since then. However, the most egregious kidnapping in recent times happened on 16 October this year when the Supreme Court struck down the Constitution’s 99th amendment and the NJAC Act, which tried to bring in a new constitutional regime governing the appointment of judges.

Now, let us start with some basics. We the people have given ourselves this Constitution which embodies the rule of law. If judges have been given the power by our Constitution to strike down the laws of Parliament which violate fundamental rights, in essence, the Constitution has given the judges a political role. The role of the higher judiciary, let us all be clear, is a political role and therefore, if we the people have given such vast powers to the judges, do we the people have the right to participate in the process of appointment of judges, or should judges self-select? Arun Jaitley used a really apt expression, ‘a gymkhana club’, to describe a situation where members decide who the new members are going to be. Now this question, therefore, needs to be viewed as one which concerns the whole culture of constitutionalism in our country, not as a partisan battle between the executive and legislature on one hand and the Judiciary on the other.

Let us clearly understand one more judiciary-evolved concept — the basic structure theory. Till the Golaknath case⁷ in 1967, it was accepted that the Parliament’s power to amend the Constitution was untrammelled. It was 17 years after the Constitution came into force, in Golaknath, that the Supreme Court by a majority said that Parliament’s power to amend the Constitution cannot touch the fundamental rights, and then, later again by a definite majority, the largest-ever bench of the Supreme Court held that the power of Parliament to amend the Constitution does not extend to abrogate the basic structure of the Constitution.⁸

I am a known critic of the basic structure doctrine on conceptual grounds. But that is irrelevant for the purpose of today’s talk and discussion. We will proceed on the basis, as we have to, that the basic structure theory is the law of the land. The basic structure is not defined in the Constitution itself, it is spelt out by judges on a case-by-case basis. Interestingly, in Kesavananda Bharati, which first propounded this theory, though different judges set out illustrative 49examples of what might constitute the basic structure, not one judge says independence of the judiciary is a part of the basic structure. Justice Khanna says ‘possibly’ judicial review, but independence of the judiciary was not set out in illustrations given by the judges themselves as being part of the basic structure. Nonetheless, that doesn’t matter. If there is a basic structure theory, I do not think there can be any quarrel with the proposition that independence of the judiciary is part of the basic structure of the Constitution. As is democracy, as is separation of powers, as is a system of checks and balances. However, the problem arises when, while analysing the basic structure, you forget the architecture, you forget the design, and you come down to individual bricks.

Let me just develop this a little: when you talk of a structure, four professions are involved — architecture, civil and structural engineering, masonry, and bricklaying. Now, when an amendment to the Constitution is struck down, what are the considerations? Are you going to look at how the overall architecture is damaged? How the structure of the Constitution, as a whole, is damaged? Or are you going to look at the colour and the quality of individual bricks and say that even if one brick is replaced by another, the entire basic structure is automatically violated? That is the central problem with this judgment, which we will come to as we get into more details.

Normally when we talk of basic structure we think of the original Constitution. Though, conceivably you can say that when significant additions are made, in due course those additions themselves may become basic. However, when we are talking of the basic structure theory, in the context of our relatively young Constitution, we are talking of the original Constitution.

Now, what was ‘basic’ in the matter of judicial appointments as far as the original Constitution was concerned? That the President, which means the executive, did not have the untrammelled right to appoint judges to the superior judiciary, unlike the case with many constitutions around the world, where the executive has the absolute right to appoint judges, and remember, such constitutions are constitutions of countries which boast of judiciaries no less independent than ours. The choice was made that the President will not have this untrammelled right and that he would make appointments in consultation with the Chief Justice of India and such other judges of the Supreme Court whom he might find fit to consult. Now, in the First Judges case, 1981, the Supreme Court accepted the position that what Article 124 of the Constitution envisaged was consultation. Consultation of course means due regard, deference, but, consultation did not mean concurrence. But, the Second Judges case, in 1993, reversed this position, and, in my view, rewrote the Constitution to hold that in effect, consultation meant concurrence. The Supreme Court advanced an interesting theory to justify this. The Court viewed it from the point of view of competence to select. Who, which, is the best institution to select judges? It is the judiciary, because lawyers are made judges. Courts are the arena of their performance and therefore, judges are best equipped to assess the suitability of candidates for judgeship and so there is really no question of primacy as such. Now that judgment, as I said, was an egregious rewriting of the Constitution. By no process of reasoning could consultation be understood as anything other than consultation. However, the political class did not stand up and did not assert itself at that time.

The surrender of the political class to judicial supremacy was evident from 1973, after Kesavananda Bharati. Earlier when the first inroad was made in the Golaknath case, there was at least one strong champion of parliamentary rights, socialist MP, Nath Pai, who made it his life’s mission to get the judgment of the Supreme Court in Golaknath overruled by the constitutional process. However, that was not to be. This surrender of the political class, which began post Kesavananda Bharati, continued thereafter. The imposition of the Emergency soon after cemented the belief that the only thing that stood between dictatorship and the people was the Supreme Court and the basic structure theory. Therefore, even in 1993, while the Supreme Court created a constitutional 50institution called the collegium and defined its composition, there was no political consensus to oppose it. In 1998 again, when the collegium was redefined to make it a larger body, and the memorandum of procedure was drafted, which essentially relegated the role of the executive to that of a security agency, the political class didn’t take any action. However, the experience of the collegium system over the years ultimately led to this rare unanimity in the political class, which led to this major amendment being passed nearly unanimously.

To briefly recapitulate what the features were:

The National Judicial Appointments Commission would have the Chief Justice of India and two senior most judges as ex-officio members. The executive was represented by a lone member — the law minister. A very refreshing innovation — representatives of civil society — was brought in by prescribing that there would be two eminent members, one of whom would be from among either SCs/STs/OBCs/minorities or women. An innovation in the interest of diversity. It also provided that the working and the procedure would be prescribed by the Act and the regulations under the Act. The Act provided that if any two members in the six-member body had reservations about a recommendation, that recommendation would not go through, which was considered a veto, but it was really a special majority (that you needed a majority of four out of six). In any case, the provision of veto was a provision of the Act, not the constitutional amendment. Despite that, the constitutional amendment itself has been struck down on the ground of there being a veto. It was held that the Act and the amendment are part of a package deal and therefore, both must go.

Now, what is the basis of the judgment of the majority? There are four judgments and therefore, it is confusing, but let us try to cull it out as lawyers. The essential logic seemed to be that independence of judiciary is part of the basic structure, and the process of appointment of judges is a necessary part of the independence of judiciary, and therefore primacy of the judiciary is a necessary part of the process of appointment, which is how the independence of the judiciary is maintained. By taking away this primacy, the constitutional amendment violates the basic structure, and the amendment is bad, the Act is bad, period.

Now let’s come back to the four professions which I referred to. Primacy is not part of the architecture. It is supposedly a part of a wall and primacy is gone because the judges are three out of six, just because they do not have the majority to overrule the decision of civil society and the executive. Now, therefore, we are coming to bricks and we do not confine ourselves to the structure, contrary to the Supreme Court’s earlier view in dealing with challenges to other constitutional amendments. So there is a relaxation of standards here, because there are very few instances, four or five, where the Court has struck down constitutional amendments, wherein the Court has held that it has to be some overarching principle which is violated before we can strike down the constitutional amendment on the ground of violation of basic structure. But, when it came to the Court’s own perception of judicial independence, it said goodbye to that test.

Let us assume for the sake of our argument that yes, primacy is part of the basic structure. What does primacy mean? When the amendment gave an institutional majority to the judiciary, that is three out of six, and deliberately opted for giving institutional minority to the executive — one and institutional minority to civil society — two, weren’t the requirements of primacy met? If you have institutional majority, wasn’t the requirement of primacy met? Apparently not, in the view of the Supreme Court, because primacy must mean their overwhelming majority, their veto. This, I submit, is a deeply flawed view and a self-serving view.

Now, let me come to the next point. Why is it that outside participation is necessary in the process of judicial appointments to a judiciary which enjoys such vast political power? The first reason is based on the doctrine of checks and balances itself, which is also part of the basic structure. If the judiciary can strike down laws of Parliament passed by elected representatives of the people, surely there ought to be 51evidence of democratic participation in the appointment of those judges in whom such vast power is vested. Vested by whom? By the people who have created this Constitution, who have created these courts. So the checks and balances theory requires that there must be an element of democratic participation in the process of judicial appointments.

Secondly, independence of judiciary is very narrowly viewed by this judgment and by our robed fraternity generally, as independence from executive interference. Now, independence from executive interference is only one aspect of independence of the judiciary. Independence of the judiciary also means judges must be independent of corporate houses, of business lobbies, of lawyers, of law firms, and most important, judges need to be independent of themselves. Independence from themselves means independence from their own prejudices and proclivities, independence from caste and religious considerations because after all, judges are all from the same society, independence from the career interests of their own kith and kin. Who is to interrogate judges on these aspects unless there is outside participation? Then comes the question of the social philosophy of judges, which is something essential in a constitutional court.

Now, I think a large number in this audience would’ve been shocked at the judgment of the Supreme Court in the 377 case.⁹ Why did that happen? Because there was no one to interrogate prospective Supreme Court judges on their social philosophies. So let us not get scared by this expression ‘social philosophy’. Those of us who grew up, who came of age, in the 1970s and were taught that ‘social philosophy’ is a dangerous concept because, when Mrs Gandhi wanted to supersede judges who did not see eye to eye with her in her socialistic reforms, one of Mrs Gandhi’s ministers, the late Mohan Kumaramangalam, articulated the reason for this with great candour and honesty, by stating that the social philosophy of judges is important. And we thought that was something problematic because social philosophy meant that courts were going to be packed with judges who are convenient to the executive. But, social philosophy as we see now means much more and therefore, judges need to be interrogated on their philosophies, and this can only be done with outside participation.

The last important reason for outside participation is that judges, when they self-select, act in mutually beneficial ways, and that’s why you have had this completely ridiculous spectacle over the years of Chief Justices of India who have held office for 17 days, 30 days, three months. Chief Justices have been sworn in in High Courts for even one day and two days so that they could get the Chief Justice’s salary for the purpose of their pension. On the one hand, you would say that the CBI director must have two years, the home secretary must have two years, foreign secretary must have two years, but, the Chief Justice of India, and Chief Justices of High Court do not have to have a minimum period. The point I’m driving at is that the concept of manpower planning in the interest of effective functioning of an institution is completely alien to the minds of judges when they sit and self-select.

There is another interesting concept which I read about in the context of rise in hierarchies in the field of business management. The concept of ‘homo-social cloning’ or ‘homo-social reproduction’. This has been studied in the context of gender discrimination, and women and minorities not rising up the ranks in an organisation. When a homogenous body self-selects, it subconsciously selects people in the same mould, ‘people like us’ or ‘PLU’. Why does a judge like a particular young lawyer who is appearing before him? Because, when he sees him, he sees himself in his own young days. It is that kind of a lawyer who makes an impression on him. This is a fact of human nature and therefore, as a check on homo-social cloning also, the importance of the outsider cannot be forgotten.

Now to this judgment, and I will just give a brief analysis for the benefit of lawyers and law students present in the audience, and then come to my concluding point.

52This is for lawyers now — for the future of the basic structure theory, this judgment opens up frightening possibilities. One is this concept of derived basic structure, the brickwork of the basic structure. Second, in prioritising between different pillars of the basic structure, if you have to choose between different pillars of the basic structure, then the independence of the judiciary is the most important. And, the third is that, in matters involving the judiciary itself, there is going to be a significant lowering of the threshold as far as applying the basic structure theory is concerned. Now you can forget all about overarching principles. Anything which the judges feel merely affects the independence of the judiciary can be brought in within the basic structure concept. So that is for the lawyers and the legal academics here to ponder over.

Now, to civil society, I would want to highlight the fact that this judgment shows a certain condescension and a certain contempt for civil society. One judgment says, and I read and re-read the line to see if there was some typo in that line, whether something was missed, but no, it is there: that at the present juncture civil society is ‘not evolved enough’ in our country to make any kind of meaningful contribution. Another judge says in his judgment that it is quite possible that both the civil society and the law minister can be influenced by extraneous considerations. There is a deep distrust of the political class, which is bad for the Constitution. The political class ultimately is a class which is answerable to the people, which is elected and which gets thrown out, unlike those learned people, who once appointed to the Bench cannot be removed except by special majority of Parliament. If Article 124 of the Constitution is amended to provide that judges can now be impeached by a simple majority and special majority, the Court will probably strike it down. But, here, in the context of judicial appointments that special majority is said to be bad. Now, civil society in my view can be the ultimate saviour in situations where judges and lawyers and the law minister ‘gang up’ although, I wonder why this judgment is only thinking of others ganging up against judges? Why is it presumed that the three judges will think alike? This is not necessarily so, this is not the experience of the collegium also. On the other hand, the law minister is often a very eminent lawyer. It is important to remember this because, during arguments in this case, people only thought of one particular crafty politician who was the law minister, but, there are renowned lawyers who are also law ministers and who are part of the same cosy club as the judges. That an eminent senior advocate who is law minister today will soon demit office during the change in government and he will be addressing these judges in court is in fact the general norm. So, the law minister can also have some self-interest. This judgment doesn’t contemplate such a situation at all and perhaps doesn’t want to contemplate such a situation where three judges and one eminent lawyer ‘gang up’ together to promote a person like them, and civil society cannot veto this. There was some political unanimity earlier, after all this bill took concrete shape during the tenure of the previous Government and I, myself remember being invited to some consultations. It was only carried forward by the next government, maybe with a change here or there. It was passed with unanimity. But today the political situation has changed, I see little hope now for Parliament to reassert itself in the foreseeable future. I think we are back to where we were and I think this unhappy situation is going to be with us at least for another 10 years, if not 20 years.

But, the debate must go on. The Constitution is not the property of lawyers and judges alone. It belongs to everyone and if it does, this judgment ought not to stand.

Mr Ramachandran concluded his lecture by answering a few questions from the audience. Over the course of discussion, a number of interesting points came to light. Notable among these were when he termed Justice Chelemeshwar’s dissent in the NJAC case as the most significant dissent that the Supreme Court has seen since that of Justice Khanna’s in ADM, Jabalpur v. Shivakant Shukla.¹⁰ He also clarified that while the judiciary remains the bulwark that protects the citizens from tyranny 53of the majority, this does not mean that the selection of the judiciary should exclude civil society and the political class.

Notes

1. Supreme Court Advocates-on-Record Assn. v. Union of India, 2015 SCC OnLine SC 1322 (NJAC case).

2. 1981 Supp SCC 87 (First Judges case).

3. The First Judges case did not involve appointment of judges to the Supreme Court of India.

4. (1993) 4 SCC 441 (Second Judges case).

5. It was clarified that the President would not be bound by the Chief Justice’s opinion if there was a disagreement between him and the Chief Justice of a High Court over the appointment of a High Court judge, or other senior Supreme Court judges over appointments to the Supreme Court.

6. (1998) 7 SCC 739 (Third Judges case).

7. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (Golaknath).

8. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Kesavananda Bharati).

9. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

10. (1976) 2 SCC 521.