Independence of the Judiciary: Who Appoints the Judges

No functionary has primacy. Article 217(1) places the three consultees, the Chief Justice of India, the Governor and the Chief Justice of the High Court, on the same footing so far as the consultative process is concerned, and it is difficult to see on what principle primacy could be given to the opinion of one.

The Central Government decides. After considering the opinions and giving them due weight, the Central Government is entitled to come to its own decision, and that decision can be assailed only on the ground that it is mala fide or based on irrelevant considerations.

The judgment supports itself with Dr Ambedkar's answer in the Constituent Assembly to a proposal that appointments require the concurrence of the Chief Justice of India: that to allow the Chief Justice practically a veto on the appointment of judges would transfer to him an authority the Assembly was not prepared to vest in the President or the Government of the day.

The Second Judges Case (1993)

Twelve years later a bench of nine judges reconsidered those questions, and reversed the central holding.

The opinion of the Chief Justice of India has primacy, and it is not his personal opinion: it is an opinion formed in consultation with a plurality of senior judges of the Supreme Court and with the senior judge conversant with the affairs of the High Court concerned.

No appointment may be made against it. No appointment can be made by the President under article 124(2) or article 217(1) unless it is in conformity with that opinion.

The executive keeps a limited say. It may decline to appoint a recommendee for good reasons on the material placed before the Chief Justice of India, but if the recommendation is reiterated with the unanimous agreement of the other judicial consultees, the executive is bound.

On transfer under article 222: a transfer may be made in the public interest without the judge's consent, S. P. Gupta being overruled to that extent; it must be initiated by the Chief Justice of India; his recommendation binds the executive; and a transfer is not justiciable except on the ground that it was made without his recommendation.

And on appointments generally: the Chief Justice of India is appointed on the basis of selection by merit, seniority alone not governing; and appointment to the Supreme Court is by selection on merit, with inter se seniority in the High Courts kept in view.

That plurality of judges, consulting and forming an opinion the executive cannot override, is what came to be called the collegium. It is a construction of the words "after consultation", and it is worth repeating that the Constitution does not use the word.

The Third Judges Case (1998)

The President made a reference under article 143 asking, in substance, what "consultation" required in practice. The Supreme Court's opinion settled the working details: the size of the collegium for appointments to the Supreme Court and for the transfer of High Court judges, the requirement that the Chief Justice of India consult his colleagues and record their views, and the consequence of a recommendation made without that process.

For a Semester 3 answer, the point to make is what kind of proceeding it was: an advisory opinion on a reference under article 143, not a decision in a lis. It did not overrule the Second Judges Case; it worked out how it is to be operated.

The NJAC case (2015)

Parliament tried to replace the whole arrangement by constitutional amendment.

The Constitution (Ninety-ninth Amendment) Act 2014 substituted, in articles 124(2) and 217(1), a requirement that appointments be made on the recommendation of a National Judicial Appointments Commission, and inserted articles 124A, 124B and 124C constituting that Commission, whose members were to include the Union Minister in charge of Law and Justice and two eminent persons. The National Judicial Appointments Commission Act 2014 gave effect to it.

A bench of five judges struck both down. The reasoning, in the judgment's own terms:

Clause (c) of article 124A(1), including the Union Minister in charge of Law and Justice as an ex officio member, is ultra vires, because it impinges on the principles of the independence of the judiciary and the separation of powers.

Clause (d), providing for two eminent persons, is ultra vires for a variety of reasons and violates the basic structure.

All the clauses (a) to (d) of article 124A(1) are therefore set aside; and with article 124A(1) struck down, the entire Constitution (Ninety-ninth Amendment) Act 2014 is struck down in its entirety as ultra vires.

The provisions the amendment sought to amend automatically revive, and the status quo ante is restored. The NJAC Act, having no independent existence, falls with it.

The fact that proves it, and that most students do not know

Open the Ministry of Law and Justice's own print of the Constitution today. Article 124(2) still contains the words "on the recommendation of the National Judicial Appointments Commission referred to in article 124A", and so does article 217(1); articles 124A, 124B and 124C are still printed. Each carries a footnote recording that the amendment was struck down by the Supreme Court on 16 October 2015.

The reason is technical and worth understanding: an amendment that is struck down is not repealed. Parliament has not removed the words; a court has held them void. So the printed Constitution and the Constitution in force are not the same document, and a student reading the bare text without the footnotes will state the law exactly backwards.

A worked example

An appointment to the Bombay High Court in 2020. Who does what?

1. The collegium of the High Court, the Chief Justice of the High Court with the two senior-most judges, recommends a name.
2. The State Government and the Governor comment; the Union Government makes inquiries.
3. The collegium of the Supreme Court, the Chief Justice of India with the two senior-most judges, considers the recommendation.
4. If it recommends, the President appoints by warrant under article 217(1).
5. If the Government returns the recommendation with reasons, the collegium may reconsider; if it reiterates unanimously, the Second Judges Case makes the recommendation binding.

Notice that steps 1, 3 and 5 are nowhere in the Constitution. They come from the Second and Third Judges Cases, and they are the law because article 141 makes the law declared by the Supreme Court binding on all courts, and because the attempt to replace them by amendment failed in 2015.

What beginners get wrong

"The collegium is in the Constitution." It is not. The Constitution says "after consultation". The collegium is a construction of those words by the Second and Third Judges Cases.

"The Third Judges Case overruled the Second." It did not. It was an advisory opinion on a Presidential reference under article 143 which worked out how the Second Judges Case is to be operated.

"The NJAC was struck down because Parliament cannot amend the Constitution." Parliament can. It was struck down because the particular composition of the Commission was held to impinge on the independence of the judiciary and the separation of powers, and so to damage the basic structure.

"S. P. Gupta is no longer worth learning." It is, because the question is always what "consultation" means, and S. P. Gupta is the answer the Second Judges Case rejected. An answer that gives the sequence is a much better answer than one that gives only the present position.

Limits and criticism

This is a topic on which a student is expected to know the arguments, not to take a side, and the two cases are easy to state fairly.

Against the collegium. It is not in the text. It was created by a court deciding the extent of its own members' power. Its proceedings were for a long time unpublished. And Dr Ambedkar's objection, quoted in S. P. Gupta, is not answered by anything in the Second Judges Case: the Chief Justice is a man with the failings and prejudices common people have, and giving the judiciary a veto transfers to it an authority the Assembly declined to give the Government.

For the collegium. The alternative tested in this book is worse. Module I ends with a Chief Justice holding an office and a salary at the pleasure of the government he was supposed to judge. Module II is a century in which every judge was appointed by an executive answerable to nobody in India. And the events of 1975 to 1977 are within living memory of the judges who decided the Second Judges Case. Whatever the collegium's defects, it answers a danger that has actually materialised in India, while the danger it creates, a self-perpetuating judiciary, is argued rather than demonstrated.

The honest conclusion is that the Constitution's two words are inadequate to the question, that four decisions and one failed amendment have not settled it, and that a student who says so has understood the topic.

Quick revision

• Text: appointment by the President "after consultation" with the persons named in articles 124(2) and 217(1). No definition of consultation, no rule for disagreement, no collegium.
• S. P. Gupta (1981), seven judges: consultation is not concurrence; no primacy for any consultee; the Central Government decides, challengeable only for mala fides or irrelevant considerations.
• Second Judges Case (1993), nine judges: the Chief Justice of India's opinion, formed with a plurality of senior judges, has primacy; no appointment against it; a reiterated unanimous recommendation binds the executive; on transfer, the Chief Justice must initiate and his recommendation binds.
• Third Judges Case (1998): an advisory opinion under article 143 working out the composition and procedure. It did not overrule the Second.
• NJAC case (2015), five judges: article 124A(1)(c) and (d) ultra vires, the whole Ninety-ninth Amendment struck down, the earlier provisions revive, and the NJAC Act falls with it.
• The printed Constitution still carries the struck-down words in articles 124(2), 217(1), 124A, 124B and 124C, with footnotes.

Test yourself

1. What do articles 124(2) and 217(1) actually say about appointment? That every Judge shall be appointed by the President by warrant under his hand and seal after consultation with the persons named: for the Supreme Court, such Judges of the Supreme Court and the High Courts as the President deems necessary, the Chief Justice of India always being consulted for an appointment other than that of Chief Justice; and for a High Court, the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court for a Judge other than the Chief Justice.

2. State the holdings of the First and Second Judges Cases and how they differ. S. P. Gupta held that consultation is not concurrence, that none of the constitutional functionaries has primacy and that the Central Government may take its own decision, challengeable only for mala fides or irrelevant considerations. The Second Judges Case held that the opinion of the Chief Justice of India, formed in consultation with a plurality of senior judges, has primacy, that no appointment can be made against it, and that a reiterated unanimous recommendation binds the executive.

3. What kind of proceeding was the Third Judges Case? An advisory opinion of the Supreme Court on a reference by the President under article 143, working out how the Second Judges Case is to be operated. It did not overrule it.

4. Why was the Ninety-ninth Amendment struck down? Because clause (c) of article 124A(1), including the Union Minister in charge of Law and Justice as an ex officio member of the Commission, was held to impinge on the independence of the judiciary and the separation of powers, and clause (d), providing for two eminent persons, was held ultra vires and violative of the basic structure; with article 124A(1) set aside, the whole amendment was struck down and the earlier provisions revived.

5. Why do the NJAC words still appear in the printed Constitution? Because an amendment that is struck down is not repealed. Parliament has not removed the words; the Supreme Court held them void, and the Ministry of Law and Justice's print carries them with a footnote recording the judgment of 16 October 2015.