NJACked! How Supreme Court has usurped powers it never had under the Constitution

The Supreme Court has run a coach-and-four over a key feature of our constitutional democracy: it has unilaterally upended the balance of power between the people, the legislature, the executive and the judiciary. By overturning the 99th constitutional amendment for the setting up of a National Judicial Appointments Commission (NJAC) to select and transfer judges in the higher judiciary, the court has effectively arrogated to itself the right to appoint judges.

In a 4-1 verdict on Friday (16 October), the five-judge bench headed by Justice JS Khehar restored its earlier – and fairly discredited - collegium system, a system it concocted in violation of the original scheme of the constitution where the president appoints judges after consulting the Chief Justice. The court was an interested party in the litigation, but it still went ahead and overturned the will of the people as represented in parliament and the legislatures which voted overwhelmingly in favour of abolishing the collegium system.

While Justices Khehar, MB Lokur, Kurian Joseph and AK Goel voted to strike down the NJAC, Justice J Chelmeswar upheld its constitutional validity. Justice Chelameswar is the only hero in the story. Soon, judges will resume appointing their brethren through the collegium, a system followed by almost no other country in the world.

The verdict is grossly wrong for the simple reason that the various arms of democracy derive their legitimacy from the people, directly or indirectly. The people elect legislatures, legislatures elect the head of the executive, the executive drafts laws which legislatures have to approve, and the judiciary has to interpret this law. It cannot make the law by itself. Judges in any free country are either appointed by the executive, by the legislature or an independent panel, but seldom are they appointed by the judiciary itself.

Of course, it can be argued that the NJAC system violates the spirit of judicial independence since it has a politician - the law minister - as one of its members. This would imply the possibility of political pressure. The cure for this incongruity is to read down the NJAC law to exclude the politician, while retaining its core independence. Throwing out the entire NJAC construct without even giving it a trial is simply wrong and a clear judicial usurpation of power that it was not given under the constitution.

In the constitution as it stood before the NJAC was legislated, there was no place for a collegium. Here is what article 124(2) says about how judges to the higher judiciary must be appointed:

“124 (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the Chief Justice of India shall always be consulted.” (Italics mine)

Where does one find any mention of a collegium here or even judges having final say in appointing judges? Not only this. The constitution clearly places the onus on the government (ie, the President) to consult the CJI or other judges “as the President may deem necessary.”

In other words, the executive has to be a key player in the appointment of judges even if does not have the final say.

In fact, in a 1981 judgment, the Supreme Court had itself asserted that the power to appoint judges lay solely with the President (ie, the government), subject only to the proviso that it will effectively consult the judiciary.

However, as senior counsel TR Andhyarujina wrote in an article in The Indian Express last year, in two subsequent judgments, the court, “professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges." In a later judgment, the court “diluted the primacy of the CJI and gave the power of appointment to a collegium of the CJI and four of his senior-most colleague.”

As I asked earlier , “can the Supreme Court overturn an explicit provision of the constitution and arrogate to itself the right to appoint judges without reference to the government? Can it interpret the law in a way where it is the beneficiary of the interpretation? Has not the Supreme Court itself breached the basic provisions of the constitution by doing so?”

By overturning the NJAC law and not even allowing the government to appeal against the five-judge bench’s order, the bench has effectively written a new law for the appointment of judges – just as it did in the 1990s. The mere offer to hold hearings to make the collegium system better does not give this verdict any greater legitimacy.

Perhaps the court was emboldened by the current political climate, where the parliamentary stalemate may make it tougher for the government to re-enact a different NJAC law. But that does not do it any credit. In this situation, one can be sure that a judiciary-executive conflict is inevitable.

It is also worth talking about the independence of the judiciary – since the bench talked a lot about it in its 1,030-page verdict. Independence comes from integrity, and not just by having the right to appoint your brethren.

The fact is judges in India can be influenced in many ways. According to allegations made in open court , former Law Minister Shanti Bhushan alleged that eight of 16 former CJIs were corrupt and he said he was willing to be in contempt of the court for this statement.

This is what legal portal Law Resource India had to say about this allegation: “After former Union Law Minister Shanti Bhushan alleged that eight of 16 former Chief Justices of India were corrupt, his advocate son, Prashant Bhushan, filed another affidavit in the Supreme Court listing alleged instances of corruption against six of them – Justice Ranganath Mishra, Justice KN Singh, Justice AM Ahmadi, Justice MM Punchi, Justice AS Anand and Justice YK Sabharwal.”

As for KG Balakrishnan, a former judge of the Kerala High Court, Justice PK Shamsuddin (1986-93), and a Gandhian and humanitarian who served with the former CJI, alleged that Balakrishnan must be probed because he (Shamsuddin) was once approached by a Bangalore-based person to act as an intermediary to a fix case in the Supreme Court.” (Read this Firstpost story on this case).

However, there are more subtle ways of influencing judges – by offering them post-retirement jobs or sinecures.

The system is compromised because many judges are promised jobs after retirement. According to this Indian Express report of July 2012, “Of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals. In many cases, judges accepted post-retirement appointments much before they formally demitted office - at least three of them when they still had many months of service left….In many cases, the names were recommended by the Chief Justice himself.”

One can understand using the experience of judges for running quasi-judicial organizations, but if there is no cooling off period between retirement and new postings, what is the guarantee these judges will be truly independent? Won’t they be beholden to the government that gave them these sinecures?

Independence is about integrity. It cannot be legislated or ensured by judges selecting themselves. The collegium is a sure way to ensure omerta on judicial appointments. The NJAC deserved a chance.