A Challenge to Judicial Independence in India: The National Judicial Appointments Commission (NJAC) Commentary
A Challenge to Judicial Independence in India: The National Judicial Appointments Commission (NJAC)
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JURIST Guest Columnist Manoj Mate of Whittier Law School discusses the National Judicial Appointments Commission…

Over the past months, the political whirlwinds surrounding efforts by Narendra Modi’s BJP government to change India’s judicial appointments system have given way to a storm of constitutional contestation. Since 1993, India’s top judges, including the chief justice and senior justices of the Supreme Court of India (“SCI”), have had primacy and an effective final say in appointments. However, in late 2014, the Modi government, in a direct challenge to judicial power and primacy, enacted the National Judicial Appointments Act and the Constitutional (99th) Amendment Act [PDF] , establishing a new National Judicial Appointments Commission (“NJAC”). Following ratification by state legislatures, President Pranab Mukherjee gave assent to these acts, and in April, the government officially notified the 99th Constitutional (Amendment) Act, [PDF] and the NJAC Act, bringing the new laws into force.

The NJAC Act and Amendment Bill amends Article 124 of the Indian Constitution by adding Article 124A, which provides for the creation of the NJAC in place of the current collegium system. The new NJAC dramatically limits the primacy of the judiciary and increases the government’s power in appointments. The NJAC is to be comprised of the chief justice of India and two senior-most Supreme Court judges, the union law minister and two “eminent people,” one of whom would be drawn from the scheduled castes, tribes, minorities and other backward classes or women. At present, the chief justice is H.L. Dattu, and the two senior justices are Justice T.S. Thakur and Justice Anil Dave. Under this new system, the two eminent persons would be selected from a panel consisting of the chief justice, the prime minister and the leader of the opposition in the Lok Sabha. Significantly each of the six members of the NJAC would have a vote, and two members would be able to veto an appointment to the court. In addition, the NJAC would have the power to promulgate new regulations governing criteria for selection and procedures for appointment of Indian Supreme Court and high court judges.

Following the enactment of the NJAC, judicial appointments have reached a standstill. In a letter to Modi, Chief Justice of India, H.L. Dattu stated that he would refuse to participate in the three-person committee charged with selecting the two eminent persons to the NJAC until its constitutionality has been decided by the Supreme Court. As of April 2015, there were 364 vacancies in high courts that are currently on hold as a result of the constitutional impasse over the NJAC. The battle has now shifted to the judiciary, and following the filing of a series of petitions challenging the constitutionality of the NJAC, a supreme court panel referred the matter to a larger five-judge constitutional bench which began hearing oral arguments in April.

Since the 1980s, the court dramatically expanded its role in the governance of the polity and selectively asserted itself in fundamental rights. As I have argued elsewhere, this selective assertiveness has reflected the judges’ unique elite worldviews and conceptions of the rule of law and the broader ethos of professional and intellectual elite opinion that frames and shapes judicial-decision making in India. Faced with the power of a strong government following years of weak coalition governments, will the court continue to assert itself in protecting its institutional structure and power or bow to the winds of political pressure seeking to democratize a professionalized model of judicial appointments?

The Historical Context

Under the present “collegium” system, the Chief Justice of India (CJI) and senior justices had primacy in a consultative appointment process with the government, a product of a series of judicial decisions in the 1990s. Prior to the 1970s, the court’s appointments and transfers were a collaborative process in which the prime minister and council of ministers would consult with the chief justice and other constitutional functionaries. During the 1970s, following a series of decisions challenging the policies and power of Indira Gandhi’s government, the government politicized the appointment process by effectively packing the court and attacking its power, culminating in the emergency rule period (1975-1977).

Articles 124, 217 and 222 of the Indian Constitution provide that the executive (the Prime Minister, Council of Ministers, and President) must consult with justices from the Supreme Court and state high courts, along with other constitutional functionaries at the state level, in judicial appointments and transfers. In the First Judges’ Case, a case involving challenges to judicial transfers by the Gandhi regime in 1980, the Court interpreted the “consultation” requirement in articles articles 124, 217, and 222 of the Indian Constitution to mean that the executive had primacy in judicial appointments and transfers following consultation with the judiciary and other functionaries. However in the Second Judges’ Case (1993), the court reversed course and held that the “consultation” requirement in Article 222 of the Indian Constitution meant that the executive needed the concurrence of the judiciary in appointment decisions. In justifying its decision the Court suggested that judicial independence was a basic feature and that allowing the executive to have primacy would threaten this independence and also held that judges’ were in the best position to determine the merits of appointments. The court established the “collegium” system of appointments wherein the chief justice and senior justices would now have primacy. In the Third Judges’ Case (1998), the court expanded the collegium to include four senior justices.

Litigation and Constitutional Arguments

In April, a three-judge bench of the SCI referred a series of petitions challenging the NJAC to a five- judge bench. Justice Anil Dave recused himself from the five-judge bench because he had already been appointed to the three-person committee charged with selecting eminent persons. In his place, Chief Justice Dattu chose Justice J.S. Khehar to lead the bench. Significantly the court rejected the government’s request that the matter be heard by an eleven-judge bench in order to review the court’s earlier judgments in the Second Judges Case and Third Judges’ Cases, in holding that the constitutionality of the NJAC under the basic structure doctrine needed to be evaluated independently of these decisions.

The petitioners challenging the NJAC have effectively been consolidated around the lead petition of the Supreme Court Advocates of Record Association (SCAORA). Petitioners have argued that the NJAC violates the basic structure of the Indian Constitution by attacking judicial independence. The basic structure doctrine was first asserted by the Court in Kesavananda Bharati v. State of Kerala in 1973 and later reaffirmed in Minerva Mills v. Union of India (1980). Under the basic structure doctrine, the court has the power to invalidate constitutional amendments that violate the basic structure or basic features of the Indian Constitution. Based on previous decisions, jurists have suggested that secularism, democracy, the rule of law, federalism, equality and judicial independence are all basic features of the Indian Constitution, though this is still contested terrain and not necessarily an exhaustive list of features.

Arguing for the petitioners, senior Advocates, including Fali Nariman, Anil Divan, Rajeev Dhavan, Arvind Datar and Prashant Bhushan argued that the NJAC violates judicial independence by creating a system in which the chief justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and Parliament would be dominant. In addition petitioners also argued that the NJAC would override the convention that Chief Justices are selected on the basis of seniority. Furthermore petitioners challenged the new NJAC act on the grounds that it grants Parliament the power to change and alter judicial selection criteria and procedures, which constitutes a violation of judicial independence, separation of powers, and the rule of law. In his oral arguments, senior advocate Ram Jethmalani, rebutted the government’s arguments, observing the NJAC violated judicial independence by allowing the Union Law Minister, a major litigant before the court, to play a role in appointments and also argued that the NJAC constituted a clear attack on the separation of powers under Article 50 of the Constitution.

Advocates for the government and several states have argued that the NJAC would improve judicial selection and the quality of the judiciary and that the NJAC does not violate the basic structure. In defending the NJAC, Attorney General Mukul Rohatgi argued that expanding the appointment process to include a more formal role for the law minister, along with two “eminent persons,” would help lead to a more diverse and representative judiciary that is more accountable to the people. The government has also argued that a switch to the NJAC would improve the quality and merit of judicial appointments, going so far as to impugn the merit of specific appointments under the collegium. In addition senior advocate K.K. Venugopal, representing the state of Madhya Pradesh, argued that the NJAC did not violate the basic structure, as Article 124 has drafted conferred primacy on the executive, not the judiciary, in judicial appointments and that the Supreme Court had distorted and departed from the original understanding of Article 124 the allocation of executive and judicial power in judicial appointments4 in the Second Judges Case and Third Judges’ Cases.

In recent hearings in July, the bench has expressed concerns that the NJAC in its present form violates the basic structure doctrine by compromising judicial independence. The bench also has asked petitioners to suggest potential modifications to the NJAC, while acknowledging the need for reform of the collegium system. The Court recently reserved judgment on the case on July 15th and is expected to issue a decision within the next few weeks.

Undoubtedly the court’s decision will have profound implications for the future of the judiciary. While the NJAC could enhance the accountability and transparency of the appointment process, a decision upholding the NJAC would weaken judicial independence. Moreover upholding the NJAC could temper the recent assertiveness of the Court, by allowing the government to appoint and transfer judges on the basis of their policy ideology, potentially diminishing the salutary role of the Court as a check on corruption and malgovernance in Indian politics. Based on the Court’s earlier precedents, oral arguments and the bench’s own statements, it is likely that the court will invalidate the NJAC in its current form. While invalidating the NJAC under the basic structure doctrine would be extraordinary from a comparative perspective, such a ruling would be consistent with the Court’s record of assertiveness in the defense of judicial integrity and independence.

Manoj Mate is Associate Professor of Law at Whittier Law School, and Director of the Center for International and Comparative Law at Whittier and Associate Professor (by courtesy) of Political Science at Whittier College.

Suggested citation: Manoj Mate, A Challenge to Judicial Independence in India: The National Judicial Appointments Commission(NJAC) , JURIST – Academic Commentary, July 23, 2015, http://jurist.org/forum/2015/07/manoj-mate-judicial-independence.php

This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

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