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thehindu.com

The question of primacy

July 20, 2015

Today's Paper OPINION

To a layperson, the question raised by a judge of the Supreme Court
last week on the exact constitutional identity of the countrys Chief
Justice may appear to be only an academic doubt. However, seen in
the backdrop of the current debate over what is the ideal process for
appointing members of the higher judiciary, the question may have
a bearing on the role of the Chief Justice in the process. The
question from Justice Kurian Joseph, in the course of the hearing in
the case relating to the validity of the National Judicial
Appointments Commission, arose from the fact that Article 124 of
the Constitution refers to the Chief Justice of India, while the
Form of Oaths and Affirmations in the Third Schedule uses the
term Chief Justice of the Supreme Court of India. Is there a
distinction? The provisions concerning Supreme Court judges fall
under the head Union judiciary in the Constitution, implying that
the CJ is indeed the head of the Supreme Court. In judicial matters,
the CJ is the first among judges enjoying equal status, but in a
constitutional sense, especially when playing the role of a
consultee in judicial appointments, he is the paterfamilias of the
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entire judiciary. This dual identity presents no conundrum when

one remembers that the judiciary, unlike the executive or the
legislature, is not federal in nature. While the State and Central
governments, or the State legislatures and Parliament, which are
sovereign in their respective domains, have an element of
co-equality, the judiciary has a single hierarchy in which the
Supreme Court is at the apex. This is demonstrated by the fact that
under Article 141, the law declared by the Supreme Court is binding
on all the courts.
However, the question acquires an entirely different dimension
when seen in the context of the current debate on whether the
country needs a new mechanism for judicial appointments the
NJAC or it should retain the collegium system introduced by the
second judges case in 1993. The collegium, originally a threemember body conceived by the court, and later expanded to include
five members by the third judges case of 1998, was an institution
in which the CJs consultative role was encapsulated. If the NJAC,
in which the Chief Justice and two senior-most judges represent the
judiciary, while two eminent persons and the Union Law Minister
represent the executive, is going to replace the collegium, does the
CJ lose his constitutional identity as a necessary consultee, and his
role diminished to that of an ordinary member in a multi-member
commission? In other words, the question seems to be the one that
the NJAC debate began with: should the judiciary retain its primacy
in appointments, or should it share an equal responsibility with the
executive?

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