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NJAC Verdict: Collaboration, not confrontation

... Chintan Chandrachud /The Hindu:

 On Friday (October 16), a five-judge bench of the Supreme Court decided amongst the most significant constitutional cases in recent history — one that had prompted a moratorium on judicial appointments to the Supreme Court and the 24 High Courts.

For 31 days, the Supreme Court had heard a challenge to the validity of the 99th Amendment and the statute that sought to put in place a system of judicial appointments led by a National Judicial Appointments Commission (NJAC). The Amendment provided that the NJAC will consist of six people — the Chief Justice of India, the two seniormost judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. 

By a majority of four to one in a judgment of over a thousand pages, the Court struck down both the Amendment and the statute. In one of the rare instances of the invocation of the ‘basic structure’ doctrine (formulated in Kesavananda Bharati vs. State of Kerala) to strike down a constitutional amendment, the Court held that the Amendment abrogates the independence of the judiciary.

Assumption on basic structure

In doing so, it committed a serious error. That the independence of the judiciary forms part of the basic structure of the Constitution is fairly uncontroversial. The judgment, however, was based on an additional assumption: that primacy of the judiciary in the appointments process is indispensable for the independence of the judiciary and, by implication, forms part of the basic structure. This is an ambitious claim. As the dissenting judge records, there may be alternative means of protecting the independence of the judiciary, and Parliament must have a choice amongst them.

The Court also expressed considerable discomfort with the composition of the NJAC. This primarily stemmed from the concern that the eminent persons would be political appointees charged with the task of appointing ‘committed’ judges. This is a peculiar argument, given that the nomination of eminent persons requires the consent of the Chief Justice, the Prime Minister, and the Leader of the Opposition. In fact, an ‘electoral markets thesis’-type argument, propounded by Tom Ginsburg and other scholars, would suggest the opposite — that the politicians are likely to nominate independent, rather than politically inclined, eminent persons as insurance against defeat in the next elections. Somewhat more justifiably, the Court was concerned that the statute stipulated that no person would be recommended for appointment to the Supreme Court if any two members disagreed with the appointment.

The most remarkable aspect of the Supreme Court’s judgment is that it abandoned its standard process of constitutional review. The Court usually adopts a three-stage process. It first decides whether or not a law, as ordinarily interpreted, is valid. If the law is not valid, the court moves to the second stage — considering whether it can be interpreted in compliance with constitutional requirements. This is an important stage, which gives the Court the flexibility of protecting the Constitution while limiting the exercise of democratic power to the smallest possible extent. Finally, only if the law cannot be so interpreted, is it struck down.

In this case, the Supreme Court leapfrogged from the first stage to the third. As I have argued earlier, many of the court’s concerns could have been allayed through interpretation. For instance, the Court could have read down the veto powers to apply only to the judges on the NJAC. Alternatively, it could have conferred a veto power upon the Chief Justice in the process of appointing ‘eminent persons’. The dissenting opinion offered an (albeit radical) interpretive solution of this kind. To avoid the possibility of a bipartisan compromise between the political parties (that secures the appointment of an eminent person for each), the opinion favoured presenting a list of candidates for each of the two nominees to a vote of the judges of the Supreme Court.

Fears of conflict

Perhaps more interestingly, innuendos of a growing conflict between the executive and the judiciary are scattered throughout the judgment. The Court, for instance, records the government’s argument that the Amendment was approved almost unanimously in both Houses of Parliament, and ratified by an overwhelming majority of States. As any student of constitutional law knows, once it is accepted that an amendment complies with procedural rules, the extent of its support is irrelevant to adjudication. The majority opinion, on the other hand, frequently posits that the failings of the collegium system lie at the door of not only the judiciary, but also the executive. The judges in the majority also denounced the fact that the government was in a ‘hurry’ to bring the constitutional Amendment.

At first glance, these observations seem to suggest that we are gradually moving towards another era of confrontation between the two branches, even if not of the proportion of the 1970s. But paradoxically, the way the Court’s judgment has been framed could well promote collaboration between the executive and the judiciary. The government now has two options. The Court has announced that it will be holding ‘consequential hearings’ to tackle deficiencies in the collegium system that have come to light. If taken seriously, this is a significant concession. The government’s first option, then, would be to buy into this venture, by seeking to marry the best elements of the NJAC with the best elements of the collegium system.

There is also a second option available to the government. The Court has held that independence of the judiciary and the primacy of the judiciary in the appointments process — but not the collegium system — form part of the basic structure. Thus the possibility of establishing another Commission is still on the table, so long as it complies with the principles set out in the judgment. In fact, there are nuggets of information in the Court’s judgment describing what a constitutionally valid Commission would look like. For instance, the leading majority opinion explains that civil society can be legitimately included in the appointments process through a non-binding consultation procedure. Ironically then, the Supreme Court’s judgment paves the way for collaboration, rather than confrontation. 

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