A Chance that the court missed
“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” -Lord Acton.
No imaginative legal preposition is laid down in the judgment in the “Fourth judges’ case” that dealt with National Judicial Appointment commission (NJAC). True that there are certain glimpses in Justice Chelameswar’s dissent. As Gautam Bhatia correctly observes “…the considerations that weighed with the Court in declining referral tend to become blurred with the arguments on unconstitutionality, leading to a significant amount of confusion”[The NJAC Judgment and its Discontents, Indian Constitutional Law and Philosophy blog, October 16,2015 (Emphasis ours)].The plot of confusion thickens where the Court notes that “Needless to mention, that if (the Attorney General) was successful in persuading us, that the said judgment did not prima facie lay down the correct legal/constitutional position, the matter would have to be examined by a Constitution Bench, with a strength of nine or more Judges of this Court, only if, we would additionally uphold the challenge to the impugned constitutional amendment, and strike down the same, failing which the new regime would replace the erstwhile system”. When the constitutional validity of the 99th amendment and the NJAC required to be decided, the Court could not have adhered to the “prima facie satisfaction” of the correctness of the earlier judgment.
Now, any attempt to unpack the judgment must carefully try to tackle this “confusion”. As most would agree, reference to an eleven-judge bench would have been the most appropriate course of action, which the Court deliberately chose not to opt.
In any case, it was contended that the Second Judges’ case must be reviewed on merits and the Court made quite an unconvincing response. It said, “submissions advanced by him(the Attorney General), could not be canvassed on behalf of the Union of India as in the Third Judges’ case, the Union had consciously accepted as binding the judgment rendered in the Second Judges case.”The initial note in the third judges case is quoted to support this stand: “We record at the outset the statements of the Attorney General that - (1) the Union of India is not seeking a review or re-consideration of the judgment in the second Judges’ case, and that (2) the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference.”
It’s questionable as to how an undertaking given by a previous Attorney General will bind all future governments in matters of legislations and policy. It could be said that governments should be bound by the actions of the earlier ones for the sake of certainty in regular business. Even if we accept this claim, to argue that a previous submission operates against the future law making power of the Parliament would be quite irrational in a parliamentary republic.
Very interestingly, in paragraph 69, the Court’s refusal to at least, prima facie find the Second Judges’ case erroneous is founded upon the Memorandum of Procedure for Appointment of Judges and Chief justices to the Higher Courts framed by the Ministry of Law, Justice and Company Affairs in 1999. The Court basically tried to establish that according to the Memorandum procedure, there is sufficient representation of the executive in judges’ appointment. It is stated,-
“As views are exchanged in writing, views and counter views are in black and white. Nothing happens secretly, without the knowledge of the participating constitutional functionaries”.
Assuming that claim be correct for a moment, it is impossible to understand how it ascertains the legitimacy of the Second Judges’ case. Wasn’t the Court required to examine the Second Judges’ case keeping in mind the principles of separation of powers and constitutional interpretation? How does a post-verdict executive document validate the verdict? This reasoning abrogates a much-needed larger bench reference, possibly leading to overruling of the Second Judges’ case. This could be said to restore judicial supremacy that T.T. Krishnamachari decoratively put as “Imperium in Imperio”
Significantly, the Court inter alia uses the ‘primacy of the judiciary’ ground to do away with the amendment. It will be a mistake to assume that even this principle, in terms of judicial appointments, takes its legitimacy from the text of the Constitution. The ‘basic structure’ tool was ‘invented’ by the Court itself in the classic Keshavananda Bharati case (1973). Now keeping fully in mind the contributions of Keshavananda Bharati in the political and constitutional history of India, very valid arguments against the correctness of this doctrine were raised in various points of time. It has been alleged that the doctrine is “anti-democratic and counter-majoritarian” (Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ Supreme But Not Infallible, New Delhi: Oxford University Press, 2000). Whether one approves of or condemns the basic structure doctrine, the interesting aspect is that the Supreme Court essentially relies on a self-invented tool to legitimise another, namely the collegium.
Now, one might positively look forward to hearings in the matter “of grievances as to the working of pre-existing system.” But it seems more like needlessly manufacturing a defective machine, recognising that it has done more harm than good in course of time and ultimately trying to refurbish.
Value of dissent
Experience has shown that dissents have famously prevailed over the majority opinions in time, both in India and abroad. The postulate by Justice Chelameswar that transparency is an aspect of rationality also implies a need for reference since according to him the collegium really needed a relook. Minority voices have often developed into majority opinions in due course of time. It is worth remembering Justice Ward :-
“There is little point in expanding upon [my] reasons for I am outnumbered, nay outgunned, by the commercial colossi seated either side of me. I prefer the instincts of the youthful Stanley Burton(J) before he became corrupted by the arid atmosphere of this Court. It goes to prove what every good old-fashioned county Court judge knows: the higher you go, the less the essential oxygen of common sense is available to you. So I am unrepentant. With, of course, great respect to my Lords, I dissent.”(Ocean bulk v TMT  3 All E R 282).
The majority judgment rests on a fundamentally flawed proposition that collegium is synonymous to judicial independence. In a recent study “The politics of UK’s changing Constitution” by Graham Gee, Robert Hazell, Kate Malleson and Patrik o’ Brien (Cambridge University Press, 2015) the authors rightly say that judicial independence is contestable as well as contextual. They explain:-
“Judges can be subject to influence not just from outsiders, like politicians, but also from insiders – from fellow judges. Influence might arise out of decisions by senior judges about issues lie judicial deployment, working conditions, remuneration or promotion. Some internal influences will not raise any concerns, such as the influence that higher Courts exercise over lower Courts through the appellate system. Others would be clearly inappropriate”.
It is only the minority judgment that comprehends the issues of independence in the correct perspective.
Eminence of outsiders
The objection by the majority against the induction of eminent persons also is equally questionable. Justice Khehar’s views indicated in plain speak in this regard in paragraph 205 needs exposition not merely on account of its undemocratic tone and tenor that undervalued the ‘maturity’ of civil society and political society. (Even this is questionable when one evaluates the ‘maturity’ of the ‘committed judiciary’ in its response to the National Emergency (1975) in contrast with the civil society’s and polity’s response to it). The Court found fault with lack of prescription of ‘qualifications” for “eminent persons”. The Court lost sight of the fact that the Constitution does not prescribe much of a qualification even for the President of India vide Article 58 and the country seldom suffered for that reason. Still further, when a committee of the Chief Justice, the Prime Minister and the Opposition Leader selects two ‘outsiders’, it was incumbent upon the Court to take into confidence the inbuilt mechanism of the select committee accommodative of divergent or even opposite views. Again, the veto power on the 2 members ought to have been taken as a positive element for the reason that they could not have ever selected a judge on their own, for they do not constitute the majority. At best, they could have only vetoed a wrong selection by the majority, and the possibility for them to oppose a right or acceptable candidate is less, when the process is open. The veto power is therefore a scientific device to ensure check and balance. In our view, these fundamental hermeneutical errors in the verdict could have been rectified in the event of a reference to a larger bench, if not to the Full Court.
The judgment in the fourth judges’ case is a historical for it failed to make use of the space for judicial creativity left by the relevant constitutional provisions. A judgment on judicial appointments rendered in 2015 should have taken advantage of analysing the best practices in judicial appointments developed in other jurisdictions during recent years. A passing reference to the 15 countries in paragraph 86 of justice Khehar’s judgment or elsewhere is far from an analysis of the situations obtaining elsewhere. When the second Judges’ case (1993) and the third Judges’ case (1998) were decided the Court had historical limitations for it was deprived of the empirical inputs from outside. The report published by United States Institute of Peace (2009) says that judicial councils form a “happy medium” where neither the judges nor the political heads have predominance. The report also says that about 60% of the modern constitutional democracies have adopted independent commissions as a means for selection to higher judiciary.
Such a global exploration also would have been done, had there been a reference of the case to a larger bench while revisiting the earlier judgments in judges’ cases. The refusal for reference has thus foreclosed not only an effective deliberation on the issue, but stalled the possibility for real glasnost or perestroika in Indian judiciary.
(Kaleeswaram Raj is a lawyer practising in the Supreme Court and the Kerala High Court. Thulasi K.Raj is a Post Graduate Law student at University College London .This article was originally published in The Statesman dated 29.10.2015).