Is NJAC a violation of Article 368 or violates the theory of pith and substance?
To understand we must go back to the root of the matter.
This issue is neither constitutional nor legal. The issue is to decide the procedure for appointment of Judges in High Courts namely the High Court and Supreme Court. As such the debate on the procedure to appoint judges to higher courts was debated forcefully by several leading giant members of the Constituent Assembly. But no consensus was drawn. The details we shall see here are below. But before that somewhere in the year 1991 by order and Judgement of the Supreme Court, a system was designed by the name Collegium. In Collegium 6-8 Judges would consider candidates for the office of the higher court judges which includes the Chief Justice of State and Supreme Court Collegium members. Who selects the candidates and forwards the names to the Law Ministry for scanning intelligence background. There is no other role of the Government in the selection process. The President in the course gives his assent and notifies. Is this a correct system that was dreamt by the makers of our Constitution? Or is hit by pith and substance?
Link to read Judgement :
Current scenario and the allegations:
Over a period of time, this system was allegedly affected by nepotism and it is alleged that it has created a monopoly. There were news reports as well as reports of a senior lawyer at the bar that 50% of the Judges are relatives of the ex-Judges. In the meantime, the Government enacted a law called National Judicial Appointments Commission Act, 2014 ( NJAC ) which was abrogated and declared ultra-vires by the Supreme Court. This resulted in the continuity of the Collegium System. In its logical and practical argument that the Judiciary, it’s argued that the participation of politicians in the selection process may vitiate the independence of the judiciary. This danger was also visualized by the late Dr. B.R. Ambedkar. For the said reason though amendments were moved to adopt the American method of appointment of judges to the higher courts same were withdrawn by respective Constituent Assembly members. However, the late Dr. Ambedkar could not have thought of the situation persisting today about the collegium system which has allegedly resulted in the monopoly of a few families.
Here is the link:
With this background let us see the history of this issue and why it did not reach finality during the finalization of the Constitution of India.
The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges were in the absolute discretion of the Crown, subject only to the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown’s pleasure.
Under the Government of India, Act, 1935, appointments of Judges of the Federal Court and the High Courts were at the absolute discretion of the Crown or, in other words, of the executive, with no specific provision for consultation with the Chief Justice in the appointment process.
There was heated debate in the Constituent Assembly and many resolutions were moved for the formation of a committee, for the appointment of Judges. However, most of the drafts were either withdrawn or not moved. This is evident from the debate excerpts here and, also the end decision seems to have been reflected in the final Article of the Constitution. However, it appears that the views of Dr. Ambedkar were only for the relevant period. Hence the issue remained either undecided or the circumstances changed the system which was not there in debate. Now, what was temporary can be permanent? Why there was no decision made by the Parliament is a matter of historical research.
Now let us see excerpts of the Committee discussion, which is part and parcel of the
proceedings of the Constituent Assembly records.
Report No. 80
- Constituent Assembly and Its Committees
4.3. Discussions in the Constituent Assembly.- Union Constitution Committee, and ad hoc Committee on Supreme Court.-
There was considerable discussion in the Constituent Assembly, and in the various Committees which were appointed in connection with the appointment of Judges and other allied matters. Almost simultaneously with the appointment of the Union Constitution Committee, a Special Committee was set up to consider and report on the constitution and powers of the Supreme Court. This Committee consisted of S. Varadachariar, former Judge of the Federal Court, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi (all three of them distinguished advocates) and B.N. Rau, the Constitutional Adviser who had also earlier held high judicial office. This Committee, in its report, sent on May 21, 1947, apart from dealing with the jurisdiction of the Supreme Court, suggested two alternative procedures for the appointment of Judges to the Supreme Court.
The Committee was emphatic in its opinion that the appointment of Judges should not be left to the unfettered discretion of the executive. One suggested procedure was that for the appointment of puisne judges, the President should, in consultation with the Chief Justice of the Supreme Court, make a recommendation and such recommendation should be confirmed by at least seven out of a panel of eleven persons composed of some of the Chief Justices of the High Courts, members of the Central Legislatures and some law officers of the Union.
The alternative suggestion was that the panel should put forward three names for every vacancy, leaving it to the President to make the final choice in consultation with the Chief Justice of the Supreme Court. The same procedure with the necessary modification that the Chief Justice would not be consulted was also to apply in the matter of the appointment of the Chief Justice of the Supreme Court. In order to ensure that the panel would be independent and would command confidence, it was suggested that the panel should not be an ad hoc body but should function for a period of ten years. The extract from the report of this Committee in this respect reads:
“We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted. One method is that the President should, in consultation with the Chief Justice of the Supreme Court (so far as the appointment of puisne judges is concerned), nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the Law Officers of the Union.
The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a Judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice, except, of course, that in this case there will be no consultation with the Chief Justice. To ensure that the panel will be both independent and command confidence, the panel should not be ad hoc body but must be one appointed for a term of years”.
- Ad hoc Committee on Supreme Court.
- Ad hoc Committee on Supreme Court (21st May, 1947), Report, being the Appendix to the Report of the Union Constitution Committee; B. Shiva Rao The Framing of India’s Constitution, (1967), Vol. 2, pp. 587, 590.
Report No. 80
Dr. Ambedkar’s view.-
In the course of the discussion which followed in the Constituent Assembly, Dr. Ambedkar1 dealt with two suggestions. The first suggestion was that the appointment of Judges of the Supreme Court should be with the concurrence of the Chief Justice. The second suggestion was that the approval of Parliament or, alternatively, of the Council of States would be necessary to these appointments. Dr. Ambedkar did not accept any of these suggestions. According to him, to make an appointment subject to the veto of Parliament would be cumbersome and might involve the possibility of political pressures being exerted. He also expressed the view that to give any individual-even an eminent person like the Chief Justice-a power of veto might be a dangerous proposition. Dr. Ambedkar in this context observed:
“With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain, the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, offices of the Supreme Court, as well as other offices of the State, shall be made only with the concurrence of the Senate in the United States.
It seems to me, in the circumstances in which we like today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations.
The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are, ex hypothesi, well qualified to give proper advice in matters of this sort and my judgment is that this sort of provision may be regarded as sufficient for the moment.”
With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments, and all the prejudices which we as common people have; and I think to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that that is also a dangerous proposition.”
- Ambedakar in the C.A. Debates, Vol. 8, pp. 257-260 (24th May 1948).
The 1949 Constitution for the appointment of Judges provided as under:
Article 217 in The Constitution of India 1949
- Appointment and conditions of the office of a Judge of a High Court
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4 ) of Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India;
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; Explanation For the purposes of this clause (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;
(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India, and the decision of the President shall be final
On 13.4.2015 the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, were notified in the Gazette of India (Extraordinary). Both the above enactments were brought into force with effect from 13.4.2015. Accordingly, on 13.4.2015 Anil R. Dave, J. became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India, under the mandate of Article 124A (1)(b).
NJAC was challenged in the matter of Supreme Court Advocates on Record vs Union ( 9 Judges) In this matter the aforesaid NJAC was set aside as being an infringement of fundamental principles of the Constitution.
Now reading the case of Keshvanand Bharti Vs UOI ( 13 Judge Bench) which is also known as the fundamental right case in which the theory of pith and substance was laid down. By majority judgment, Supreme Court restricted the unfettered power of the parliament to make and amend the laws by which the basic framework and structure of the Constitution is not changed.
However, as far as the establishment of a Committee for the appointment of Judges in higher courts was either postponed or temporarily suspended. Hence in my view, this Judgment may not be applicable.
|The Records of The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair. Tuesday, the 29th July 1947
REPORT OF THE UNION CONSTITUTION COMMITTEE
Shri M. Ananthasayanam Ayyangar: Sir. there is a jumble of amendments, to clause 18 and also the various paragraphs in the Appendix. All of them can be Put under five heads.
(1) Some of them relate to the authority which is to appoint a Supreme Court judge:
(2) the authority that has got the right to remove one or other of them,
(3) qualifications for being appointed a Supreme Court Judge,
(4) by whom the salary or emoluments have to be fixed, and
(5) the jurisdiction that has to be conferred on the Federal Court. These are the five items with respect to which amendments have been tabled.
Now with respect to appointment, I find that there is almost unanimous opinion regarding the power to appoint judges being vested in the President-the President not in his discretion but the President in consultation with his ministers. In addition he can consult the Chief Justice of the Federal Court or the judges of any of the high courts. It may be that he wants to appoint a judge from one of the high courts, in which case he can consult the Chief Justice or the puisne judges of the High Court other than the one whom he wants to appoint. It may not be necessary to consult the judges of all the high courts in the provinces and also in the States. Therefore discretion ought to be given to him to consult such of those judges as may have had the opportunity to know the judge whom he wants to appoint for the Supreme Court. There is almost unanimity of opinion in this matter and there is not much controversy over that.
If you see the original provision of Article 217 of the Constitution is in consonance with what transpired in the Lok Sabha while adopting amendments and the draft committee report. There is no mention of Collegium. On the contrary, many of the members had suggested for Committee for the appointment of Judges to the Higher Judiciary. It also appears that the issue of the formation of the Committee for the appointment of Judges lost its way or vanished, disoriented or, went missing because of conflict, to adopt a Federal structure by the USA or the appointment as per the British system by Queen. However, the partial adoption of British precedent was made to empower President to appoint Judges to the higher judiciary.
But now the system is, appointments are decided by the Collegium of Judges and an Oath is given by the President. The President is only approving authority?
Whether system violates the fundamental principle of pith and substance? That can be decided by the Legislature and the Supreme Court along with the President of India in a joint debate in parliament.
The comments herein are based on records available online with limited reading material available and the same is Without Prejudice.
There may be more data with the records of the Parliament.
The country awaits the end of the uncertain situation to meet Justice.
Another blog on the same topic link:
20th January 2023