NJAC does not ensure judicial integrity and violates the Basic Structure of the Constitution; Prashant Bhushan [Read the full text of submissions]

Appearing for the Centre for Public Interest Litigation, Advocate Prashant Bhushan submited before the Constitution Bench that National Judicial Commission in its current form does not ensure judicial integrity and violates the basic structure of the Constitution. Here is the full text of his submissionsThe instant petition has challenged the validity of the Constitution 99th Amendment Act, 2014 and of the National Judicial Appointments Commission Act 2014. The petition has also sought a direction to the Union of India to set-up a broad-based full-time body for the selection of the judges of the Hon’ble Supreme Court of India and the Hon’ble High Courts that would work in a transparent manner and would evaluate candidates on set objective criteria.SubmissionJudicial integrity, judicial independence and judicial review are part of the basic structure of our Constitution as held in SCAORA case [1993(4) SCC 441]). Judicial integrity and independence is necessary for the maintenance of democracy and rule of law in the country. Judicial integrity is not only to be ensured by insulating the judges after their appointment, but also by ensuring that best persons are appointed as Judges of the Supreme Court and High Courts.The greatest care in the selection of Judges for the higher judiciary is required in order to ensure that most suitable persons with highest competence and integrity are appointed as Judges of Supreme Court and High Court. Anything less than the above would ipso facto violate the basic structure of our constitution, which includes judicial integrity, judicial independence and judicial review.BackgroundThe attempt to undermine the independence of the judiciary originated in 1973, after the Kesavananda Bharti judgement which struck down some constitutional amendments by saying that the basic structure of the Constitution could not be amended [(1973) 4 SCC 225]. The Government of the day decided that only those judges who are committed to the ideology of the government should be appointed. That began the process of supersession of Judges (for appointment of Chief Justices). At that time, judges were appointed by the government in “consultation” with the Chief Justice of India as provided by the Constitution. The Congress government then said that it was not bound by the advice of the Chief Justice. Thereafter some persons who had proximity to the government were appointed as Judges by the Government. The saying, that in order to become a judge, it was not important to know the law, but more important to know the law Minister, became the prevailing wisdom. The subversion of the independence of the judiciary by the appointment of convenient judges became a major issue, especially with increasing corruption within the executive.The issue of the manner of appointment of judges was first raised in S.P. Gupta’s case [1981 (Supp) SCC 87]. The question was whether the government or the Chief Justice should have primacy in the matter of appointment of judges, especially because independence of the judiciary had been declared a basic feature of the Constitution. In that case, the majority held that primacy in judicial appointments was with the government and it could disregard the opinion of the Chief Justice in the matter of appointments and transfers of judges and Chief Justices. But as this led to more brazenly partisan appointments, the issue was referred to a larger bench for reconsideration.Finally in 1993, the view in S.P. Gupta’s case was reversed by an innovative judgement in the Supreme Court Advocate on Record Association case [1993(4) SCC 441], which wrested the control in the matter of judicial appointments from the executive and vested it with the judiciary. The words “in consultation with the Chief Justice” was interpreted to mean, “with the consent of the Chief Justice”. The meaning of Chief Justice was interpreted as, a collegium of Chief Justice plus 3 senior judges of the Court. In fact, a new elaborate procedure was laid out by the court for appointment of judges, in which the role of the government was reduced to returning a name recommended by the collegium for reconsideration. If the collegium reiterated its recommendation, the President would have no option but to go through with the appointment. High Court appointments would also go through a similar procedure, except that the recommendations there would originate from the collegium of the High Courts.In 1998, this Hon’ble Court further tweaked its judgment of 1993 in a Presidential Reference on this issue [(1998) 7 SCC 739]. The collegium was widened to 5 judges. Consultation with other judges in the court who came from the same High Court as the proposed nominee was also provided. But the control over the appointments continued to vest with the Judiciary.This system of appointment of judges by the judiciary did lead to the de-politicization of the judiciary to a large extent and did substantially improve its independence. But the...

NJAC does not ensure judicial integrity and violates the Basic Structure of the Constitution; Prashant Bhushan [Read the full text of submissions]

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