The NJAC case before the Supreme Court of India & the need for a 15 Judge Bench

Update 7 on 14 May 

Pratap Bhanu Mehta has bluntly stated in http://indianexpress.com/article/opinion/columns/whom-do-you-trust/ that the present impasse is actually the outcome of a general last of trust in both the executive and the judiciary with the credibility of both having hit rock-bottom. 

His frank comments on our higher judiciary are something that our leading celebrity lawyers have no guts to say. He writes: 

"  The judiciary is refusing to face up to a serious crisis of credibility. There is a perception that the process of appointments is not yielding the desired quality. Internal discipline in the court hierarchy is broken. Witness the extraordinary spectacle in Madras of a high court judge bringing contempt proceedings against a chief justice, and the Supreme Court responding to this through legal rather than administrative measures. In public perception, the judiciary carries the odour of both incompetence and corruption. One effect of the J. Jayalalithaa case, whatever the facts of the matter, will be to send a signal to lower court judges that guilty verdicts in high-profile cases are unlikely to be backed up by higher courts. We deride lower courts a lot. And much is wrong with them. But it is hard to argue that judicial courage or credibility rises the higher up the system you go. The judiciary’s assurances to “trust us” are less credible than a decade ago. Seven star lawyers can make the judiciary starry-eyed about its own virtues and, therefore, its entitlement to be exempt from outside scrutiny. No one else is convinced." 

I reproduce two more brilliant paragraphs from his article here which speak truth to our Supreme Court Judges: 

"The formalism of the arguments can barely mask this crisis of trust. We want more transparent appointments. But here is the bad news. The formal design of the system has little bearing on quality, which will be determined by the persons, not the principles. We want more “criteria” specified for selection. But selection involves judgement, it cannot be robotically reduced to transparent criteria. This is the false comfort of formalism lawyers peddle. Or worse, even if you specify formal criteria, they will do little to ensure quality. Even if you say things like “eminent jurist”, “senior advocate” and so on, the blunt truth is there are eminent jurists and eminent jurists, advocates and advocates, even chief justices and chief justices. Giving, in public, reasons why candidates may have been rejected can often be an act of injustice against them. Let’s face it: This issue has come to a head because there is a deep crisis of character. And we think a formal process can be a fix. We forget that independence is not a quality inherent in an institution. It has to be claimed and reclaimed through regular conduct and action.

The current method of appointment was a usurpation of sorts. Some input from outside is important. Judging is too important to be left only to judges. In this light, the proposed NJAC is worth trying. The formal arguments against it are weak. It is not a violation of the basic structure, another fuzzy judicial invention that served an institutional purpose but has no principled basis if used indiscriminately. The mere presence of non-judicial members on a committee to appoint judges does not compromise independence. Is there a potential conflict in that the government is a major litigator and this puts the chief justice directly in a “negotiating” position with it? Possibly. But our apprehensions on this come more from our lack of faith in our chief justices."

As law students and lawyers in India, we are repeatedly told that the basic structure doctrine was a sacrosanct creation by judges trying to protect our democracy. But Mehta, an outsider to this legal community discourse, reminds us that even this doctrine is open to misuse. Therefore, I for one would like to see a 15 judge Bench test Kesavananda Bharati. 

Update 6 on 14 May 

The Statement of Objects and Reasons for the THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014 even fails to refer to the 214th Report of the Law Commission of India on the “Proposal for Reconsideration of Judges cases I, I and III – S.P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates on Record Association Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SC 739” which had recommended reversing the collegium system and ended with the following statement: 

"Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments."


The Government has done a terrible job of selling/ justifying its case for reversal of the collegium system to the public and to the legal community, in the amending acts or even in court arguments. The Center has perhaps tried to shy away from calling a spade a spade and has avoided critiquing the collegium and its outcomes. But this will be counter-productive and has given those (including on the Supreme Court Bench) opposing the NJAC an edge over the Government. 

Update 5 on 14 May 

Even with the counsel for the NJAC-supporting States supplementing, the Center will have to lead on the arguments. I am not sure that Mukul Rohatgi is up to this task. 

This matter will require a lot of research, and arguments will involve hair-splitting minutae. Rohatgi has no patience for such laboured research or arguments where only the weight of authority will compel the Bench to move away from its natural and expressed inclination in this matter. 

Also, the Center has already messed up in the way it has handled the matter so far. I am completely against the collegium which has created a corrupt nepotistic club of a small number of lawyers and judges. 

But the NJAC Act is badly drafted. The Statement of objects and reasons for the constitutional amendment act is so badly drafted that its a joke. This statement will play a crucial role in whether or not the amendments are upheld. 

This statement should have been forthright on the defects in the collegium system, the reasons why it was undesirable,it should have stated that the collegium was the result of an unconstitutional usurpation of power, that judges cannot appoint judges, that judicial appointments are not a judicial function, that the collegium had proved detrimental to both judicial independence and judicial accountability, that judicial calibre and integrity had fallen in the last 20 years, that transparency was needed, that judicial appointments under the collegium were being influenced by factors which ought not to be relevant, and that the 1993 and 1998 decisions were wrong in how the basic structure doctrine was applied, etc.  

Instead the only justification for the amendments in the statement of objects and reasons is the following sentence: 

"The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process." 

The statement does not even say that the 1993 and 1998 decisions were wrong in interpreting "consultation" as "concurrence". 

In my view, the Parliament should have been given the role of approving all judicial appointments and the Prime Minister and not the law minister should be in the NJAC. 

  

Update 4 on 13 May 

Some thoughts and questions: 

What is the basis on which Rohatgi is arguing that even if the constitutional amendments are struck down, the collegium cannot be revived as the earlier provisions have been permanently deleted from the Constitution? 

A TOI news report states that after the order was passed yesterday, Rohatgi objected to the cryptic and un-reasoned order and protested that the Court had earlier indicated that it would pass a reasoned order on the issue of reference to a larger bench. Did the Bench deliberately mislead as to its intent? 

What was the exact issue on which the Bench agreed to pass an order. 

The order reproduced below is very cryptic. Its not really exactly clear what this means. It can be read in more than one way. Maybe the GOI should apply for a clarification of this order. Its also an un-reasoned order and gives no reasons for this decision to decline whatever it is that the court declined. 

“The prayer made by the Attorney General for disposing of the issue with reference to the need for revisiting the two judgments rendered in 1993 and 1998 to be decided first as preliminary issue before hearing the main matter is declined,”

A TOI report states that Rohatgi was hesitant to cancel his vacation plans and had to be persuaded. Is this true?

Also it seems to me that so far arguments before the 5 judge bench have been very unstructured and everything has been lumped together under the general heading of arguments on merits. 

Also, has J. Khehar authored any mind-blowing judgments in his career, constitutional or otherwise. 

The calibre of the persons involved from both the Bar and the Bench in deciding this great constitutional qjjuestion is relevant. 

Update 3 on 12 May 

BarandBench had put up the following as the verbatim order passed today in the NJAC case. 

"Prayer made by Attorney General for disposing of the issue for reference to larger Bench for revisiting two judgments of the Supreme Court in 1993 and 1998 to be decided first as preliminary issue before hearing the case on merits, is declined."

This order is curious, it states that the SC has only rejected the plea that the issue raised requiring a larger bench be decided as a preliminary issue. 

Therefore, during the hearing on merits, the SC is still open to being convinced that the matter can only be decided by a larger bench. 

Read in this manner and which appears to be the only correct interpretation, the news reports that the Court has rejected completely the plea for a larger bench are wrong. 

Is this why some tweets cite PTI to say that court could still make a references to a larger bench? 

Update 2 on 12 May 

Mukul Rohatgi's epic failure in NJAC case today re-establishes the general consensus about him that he is merely an interim relief shouting lawyer, and has no ability for sustained constitutional arguments. 

He has lost a point on which the law was in his favor.

Bad strategy as well in conceding on interim relief before today's ruling.

Is it true that Rohatgi has been asked to finish arguments on constitutionality of NJAC in 2 and a half days? 

Also, I read that Rohatgi's arguments were on the lines of -to paraphrase a bit, - that the SC should go the "whole hog", etc. 

He will now lose the case in its entirety including on the issue that the collegium cannot be revived by the SC even if it strikes down the NJAC. 

The 5 Judge Bench will strike down the NJAC amendments as being violative of the basic structure of the Constitution and the Bench will declare that these amendments have no force of law and that the Constitution does not stand amended. Hence the Collegium as defined under the 1993 & 1998 decisions continues to operate. 

Is there a chance the GOI deliberately messed up its arguments because it wanted to lose? 

Because it took so much effort to lose on this point. 

Update 1 on 12 May 

After reading some reports of Fali's arguments in Court yesterday, It would probably be best if the NJAC case is now placed before a 15 Judge Bench so that it can even re-look at Kesavananda Bharati v. State of Kerala if that need arises. Whats the problem with this? The SC should not fear larger Benches reconsidering such important issues. 

Maybe its time for Kesavananda Bharati to be tested.

Here's a response to http://lawandotherthings.blogspot.in/2015/05/njac-hearing-in-supreme-court-merits-of.html " NJAC hearing in Supreme Court: Merits of AG's plea for reference to a larger Bench"

On the issue of whether Rohatgi's request for an 11 Judge Bench was belated –

First the post itself notes that it took a few hearings before it became clear closer to April 28 that the Petitioners were relying upon the 1993 and 1998 decisions & on the basic structure argument as applied therein. The Bench also made clear its inclination towards going down that road. Therefore Rohatgi's plea for an 11 Judge Bench at this time was not belated but only prompted by the direction the matter was taking. 

Second, this issue of judicial appointments is much too important for any argument of a 3 week delay etc. to prevail. 

The Supreme Court must realise that it is not "higher" than either the executive or the legislature and that all three branches are equal partners in governance and that the constitutional scheme requires all three to play a role in maintaining checks and balances on each other and in ensuring both independence and accountability. 

The Supreme Court must also realise that a final determination of this issue will require all three branches to be carried along and that all three branches/ stakeholders will need to "buy into" the legitimacy of the solution. Today the Government of the day (i.e., the executive) has spoken through the Attorney General and the 16th Parliament has spoken through its act of creating the NJAC that they are of the view that the NJAC amendments are constitutional and in public interest and do not fall foul of the basic structure doctrine. The current executive and the 16th Parliament are therefore clearly of the view that the 1993 and 1998 decisions were wrong in how the basic structure doctrine was applied and that this resulted in an unconstitutional usurpation of power by Supreme Court Judges acting as the collegium. The Supreme Court cannot ignore these two branches of government and refuse to reconsider the basic structure doctrine as applied in the earlier Judges cases. 

Fali Nariman and some members of the Bench are being dishonest in their circular opposition to an 11 judge Bench. Nariman is only diminishing in stature by the position he is espousing.

The need for an 11 Judge Bench is clear from the following statement in this post: 

"With the Bench refusing to refrain from referring to the judgments in Second and Third Judges cases, the AG perhaps had no option but to persist with his reference plea."

The issue of when the AG became convinced about the need for an 11 Judge Bench is irrelevant. 

The issue of the correctness or otherwise of the basic structure doctrine on judicial independence as applied in the 1993 and 1998 decisions is squarely before the Court because the creation of the NJAC itself raises this as an issue. The Supreme Court therefore cannot refuse to consider this issue and consequently cannot refuse to re-look at the 1993 and 1998 decisions. 

The post also misleadingly states: 

"The plea for referring the case to an 11-Judge Bench, on the basis of arguments of the respondents' counsel, appears to be based more on rhetoric, and the need for an "authoritative pronouncement" on the issue." 

As stated above, this issue is certainly not rhetorical and of course it is required for an authoritative pronouncement on this important issue which goes to the root of Indian democracy. 

The following statement in this post only exposes the bias and agenda of the author and that this statement is wrong is clear from what has been stated herein earlier and also in the first half of the post itself. 

"Clearly, there was nothing to prevent the counsel from making such a plea vociferously at the beginning of the hearing. But for reasons unknown, they didn't." 

Further of course the Bench is hesitant to refer the case to an 11 Judge Bench and the reason is not some perceived slight or waste of precious court time, but a dishonest attempt to prevent adjudication of the issue raised. (Note that the Judges are interested parties in this matter). This position of the current 5 Judge bench does not reflect well on them as this is possibly the most important case they will ever decide in their judicial careers and the future of the entire nation is at stake. The hesitation is difficult to understand because if these judges are so convinced that the basic structure doctrine was correctly applied in the 1993 and 1998 cases then why be afraid that an 11 judge bench might disagree with that. Surely, the plea of the government for an 11 judge Bench is proper under the circumstances.

The post goes on to state: 

"With the sole exception of Justice Kurian Joseph, the Bench believes that though the judgment may be useful to understand the present challenge, it is not binding." 

In response, I point out that even a first year law student knows that as a matter of law, the 1998 nine judge bench decision is binding on a 5 judge bench on the same issue. Therefore irrespective of whether or not the author of this post appreciates this legal position or not and irrespective of whatever the four judges might or might not convey during oral (and unrecorded) arguments in court, the law will require that the 5 judge bench defer to the nine judge bench decision. There is no scope for any ambiguity on this position. 

All in all, V.Venkatesan has attempted a necessarily weak defence of an indefensible position. 

The Supreme Court must refer the matter to an 11 judge Bench at the earliest. 

Seema Sapra