LL.

Comparative Public Law and Systems of Governances

Case analysis 1

(Constitution).

Submitted by:

Theodore E. Noel

Prov/LLM-7-22/044

2022-23

Course Supervisor:

Dr. B.S Reddy

Alliance School of Law

Alliance University, Bangalore
Submitted on 3rd November 2022.
 CASE ANALYSIS

SUPREME COURT ADVOCATES ON RECORD ASSOCIATION V. UNION OF INDIA.

Case name: Supreme Court Advocates on Record Association v. Union of India

Citation: (2015) AIR 2015 SC 5457

Bench: Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice
Kurian Joseph, Justice Adarsh Kumar Goel.

1) Background

The system of judicial appointment and transfer has developed as a result of Judicial
Decisions, not a law passed by Parliament or a clause in the Constitution. The four other
senior most judges of the Supreme Court make up the collegium, which is presided over by
the Chief Justice of India. The Chief Justice and four other senior most judges of a High
Court serve as its collegium. Only after receiving the CJI and Supreme Court collegium's
approval do names suggested for appointment by a High Court collegium reach the
government. The collegium method is used to nominate judges of the higher judiciary, and
the government only becomes involved once the collegium has approved the candidates.

If an advocate is to be elevated as a judge in a High Court or the Supreme Court, the

government's role is limited to ordering an inquiry by the Intelligence Bureau (IB). In relation
to the collegium's selections, it may also complain and ask for clarifications, but if the
collegium sticks with the same names, the government is required by Constitution Bench
rulings to appoint them as judges.

2) Background of the case

The Appointment of Judges of the Supreme Court and the High Court and the transfer of
judges from one High Court to another had to be made in accordance with Articles 124, 217,
and 222 of the Constitution of India. Prior to the National Judicial Appointments
Commission Act, the appointment of judges was made by the President in consultation with
the Chief Justice and other judges. Similarly, the transfers were made by the President in
consultation with the Chief Justice. Appointment based on seniority was an unsaid norm.
Justice A.N Ray was appointed as the Chief Justice of India already when there were three
senior most judges.
After this precedent was set, this led to a serious of cases which analysed the constitutional
provisions behind the appointment, transfer of judges, once such case was S.P Gupta vs
Union of India, AIR 1982 SC 149 (1st Judges case). This case held that held by the Apex
Court that the opinion of the Chief Justice does not have primacy, and the Union Government
is not bound to act in accordance with the opinion of the constitutional functionaries as the
Executive is accountable and the Judiciary has no accountability.

The Second Judges Case (Supreme Court Advocates on Record Association v. Union of India,
1993(1) SC 474) overruled the First Judges Case by a nine-judge bench, holding that the
judiciary's opinion was paramount in the event of a disagreement during the consultation
process and that the executive could only appoint judges if they agreed with the Chief
Justice's opinion. The Collegium system, which is now roughly 21 years old, was
acknowledged in both the Third Judges Case (In re Presidential Reference, AIR 1999 SC 1,
RLW 1999 (1) SC 168, 1998 (5) SCALE 629, 1998 Supp 2 SCR 400) and the Second Judges
Case. As a result, the Collegium system of appointment had been established as the law of the
land.

The 67th Constitutional Amendment Bill attempted to abolish the Collegium system. After
that, five more efforts were made. Following talks, multiple proposals highlighting the
necessity of modifying the collegium system were made by several committees. The National
Judicial Appointments Commission Act and the 121st constitutional Amendment Bill were
approved by the president on December 31, 2014.

3) Facts of the case.

The constitution Act 2014 amended Articles 124(2),127, and 128. The legislature inserted
Article 124A, 124B,124C. Article 124(2) every judge of the Supreme Court shall be
appointed by the president by warrant with a seal on the recommendation of the National
Judicial Appointment Commission referred to in Article 124A. After the amendment, no
consultation is required by the president with the Judges of the Supreme Court and the High
court. The 99th amendment replaced the collegium system with the National Judicial
Appointment Commission for the appointment of judges.

In early 2015, the Supreme Court Advocates-on-Record Association and Senior Advocates
filed writ petitions before the Supreme Court challenging the constitutionality of the Ninety-
ninth Amendment and the NJAC Act.24 The petitions alleged, inter alia, that the NJAC
violated the basic structure of the Constitution by compromising the judiciary’s
independence.

The first judge’s case gave the primacy to the executive in appointments to the higher
judiciary, declaring that the advice of the CJI’s recommendation on judicial appointments and
transfers can be refused for “cogent reasons.” The results were not good enough to suggest
that we should have an executive dominant system of appointments.

In 1993 the 9 judges bench considered the questions referred to it in the second judge’s case
(Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268). The
majority verdict gave back CJI’s power over judicial appointments and transfers. It says the
CJI only need to consult two senior-most judges.

To clarify the position the then President K.R. Narayanan sought a reference from the SC in
the third judge’s case(Special Reference No.1 of 1998 AIR 1999 SC 1), the Supreme Court
laid down that the CJI should consult with a plurality of four senior-most Supreme Court
judges to form his opinion on judicial appointments and transfers. The crux of the second and
third judges case is that the Judiciary should have primacy.

In 2000 the Venkatachaliah Commission was set up by NDA government to review the
working of the constitution. In its report the commission recommended the formulation of a
judicial commission comprising of:

(a) The Chief Justice of India: Chairman

(b) Two senior most judges of the Supreme Court: Member

(c) The Union Minister for Law and Justice: Member

(d) One eminent person nominated by the President after consulting the Chief Justice
of India: Member.

This report was shortly followed by The Constitution (Ninety Eighth Amendment) Bill, 2003
introduced by the NDA government which aimed at establishing a National Judicial
Commission according to the suggestions of this commission but before this bill could be
passed the Lok Sabha dissolved.

In 2013 the UPA government came up with The Constitution (120th Amendment) Bill, 2013
which provided for a six-member Judicial Appointments Commission consisting of three
judicial and three non-judicial members, thus giving equal say to both and primacy to none.
In 2014 the NDA government introduced The Constitutional (121st Amendment) Bill, which
was subsequently passed by both houses of the parliament, ratified by 16 state legislatures
and assented by the President; NJAC Act and the Constitutional Amendment Act came into
force from 13 April 2015.

4) Issues raised.

Whether The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial
Appointments Commission Act, 2014 are violative of the ‘Principles of Separation Of
Powers’ or not?

5) Contentions of the parties.

The petitioners contended that:

1) The judicial responsibility in the matter of appointment of Judges is the most important
trusteeship, could not be permitted to be shared, with either the executive or the
legislature.
2) The “independence of the judiciary” had been seriously compromised, through the
impugned constitutional amendment
3) Non-disclosure of reasons, why the existing procedure was perceived as unsuitable,
depict that the object sought to be achieved by the legislature was to dilute the primacy
earlier vested with the Chief Justice of India (based on a decision of a collegium of
Judges), provided for under Articles 124 and 217, as originally enacted.
4) The Constitution (99th Amendment) Act, and the National Judicial Appointments
Commission Act, had done away with, the responsibility vested with the Chief Justice of
India, represented through a collegium of Judges (under Articles 124 and 217 – as
originally enacted). Accordingly, it was submitted, that till the system adopted for
selection and appointment of Judges, established and affirmed, the unimpeachable
primacy of the judiciary, “independence of the judiciary” could not be deemed to have
been preserved.

The respondents contended that:

1) The Attorney General contended that that the issue of “independence of the judiciary”
(judicial primacy) has nothing to do with the process of “appointment” of Judges to the
higher judiciary. It was submitted, that the question of independence of a Judge arises,
only after a Judge has been appointed (to the higher judiciary), for it is only then, that he
 is to be shielded from the executive/political pressures and influences. It was sought to be
elaborated, that Judges of the higher judiciary, immediately after their appointment were
so well shielded, that there could be no occasion of the “independence of the judiciary”
being compromised, in any manner, either at the hands of the executive, or of the
legislature.
2) It was emphasized, that only if five of the six Members of the National Judicial
Appointments Commission recommended a candidate, he could be appointed to the
higher judiciary. It was submitted, that the afore stated safeguards, postulated in the
amended provisions, would not only ensure transparency, but would also render a broad-
based consideration.
3) Enacting the Constitution (99th Amendment) Act, and the National Judicial
Appointments Commission Act, the Parliament had discharged a responsibility, which it
owed to the citizens of this country, by providing for a meaningful process for the
selection and appointment of Judges to the higher judiciary.
6) Judgement.

The Court by a majority of 4:1 struck down the 99th Amendment Act, 2014 and consequently
the NJAC Act as unconstitutional and void. The court has struck down The Constitution
(Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission
Act, 2014, declaring them to be unconstitutional and void with a majority of 4:1. The court
has also rejected the respondent’s plea for reference to a larger bench for the reconsideration
of the Second and Third Judge’s cases. The collegium system for appointment and transfer of
judges has been restored.

7) Ratio of the case.

The majority including Justices Khehar, Lokur, Goel and Joseph, held that the involvement of
the executive in the appointment of judges impinged upon the “judicial primacy” and
supremacy of the judiciary, and violated the principle of separation of powers between the
executive and judiciary which formed part of the basic structure of the Constitution. The
majority opinion was that judicial primacy i.e. independence of judiciary in appointment is
vested under article 124 and article 217 of the Constitution. This term was first coined during
the second judges case and reaffirmed in the third judges case which interpreted the word
‘consultation’ as ‘concurrence’ which gave raise to the collegium system in India. The
majority were of the opinion that the National Judicial Appointment Commission (NJAC)
was not independent due to the presence of the Union Minister of Law and Justice.

8) Analysis of the case.

The situation of appointing Chief Justice has recently come into the spotlight with the Union
Minister of Law and Justice, Mr. Kiren Rijiju making a statement that the main role of judges
is to dispense justice rather than be pre-occupied by making appointment. In this case, the
majority of the justices were focused on reaffirming the importance of separation of judiciary
and the executive especially in appointment of judges. The majority were of the opinion that
the NJAC would violate the principle of separation of powers but only J Khehar and Goel
having used that term judicial primacy in his judgement and J. Lokur endorsing the idea.
Most of the majority opinion only reasons out why the NJAC is violative of the basic
structure but none of them has mention about judicial primacy. The judgments have only
hinted on the independence of judiciary from the executive but not actually affirmed the
principle stated in the second and third judges case in their respective judgements.

J. Khehar, in his judgement, held that the primacy of judges in judicial appointments had
been upheld by judgments even before the Second Judges Case. He also opined that the
collegium played an important role in implementing the will of the framers of the
Constitution by curtailing the will of the executive. The same was followed by J. Lokur also
adding on by saying… “it violates Article 14 of the Constitution by enabling substantive
arbitrariness in the appointment of judges to the Supreme Court and the High Courts”.

The majority did not look into the second and the third judges case and its interpretation of
the word ‘consultation’ and ‘concurrence’. The majority merely affirmed that it was the right
interpretation. In this analysis, the main judgement to analyse is the dissenting opinion given
by J. Chelameswar. The dissenting opinion by Justice Chelameswar was very disappointing
being the only dissenting judge on the Bench. It is disappointing because Justice
Chelameswar did not analyse the second and third judges case and div into its interpretation
of its constitutional provisions. Justice Chelameswar neither concurred with the decision nor
critiqued it but rather steering clear of the judgements.

Justice Chelameswar main judgement lied with only 2 major issues:

 i. Whether the mechanism established by the Constituent Assembly for the appointment
of Judges of the Constitutional Courts is the only permissible mode for securing an
independent judiciary or can there be alternatives?
ii. If there can be alternatives, whether the mechanism (NJAC) sought to be established
by the AMENDMENT transgresses the boundaries of the constituent power.

For the 1st issue, Chelameswar. J just quoted Dr. Ambedkar’s statement by saying “It is
dangerous to confer an unchecked power of choosing or appointing Judges on the executive.
The concurrence of the legislature is also not desirable as it leads to a possibility of
appointments being influenced by political considerations or under political pressure.”

One reasoning in Chelameswar. J where he opined that absolute independence for any of the
three branches is against our Constitution's structure and fundamental democratic principles.
Such balance was upset by this Court's interpretation of the Constitution as it stood before the
Amendment. The Amendment does not aim to alter the fundamental framework of the
Constitution; rather, it just aims to restore such balance. J. Chelameswar also answered a few
of the contentions of the petitioners that the presence of the Union Minister is questionable.
For which he answered that “The presence of three senior most Judges of this Court in the
NJAC is a wholesome safeguard against such possibility. Any two of the three Judges can
stall such an effort, if ever attempted by the Executive”.

J. Chelameswar was factually right in this case where he also mentions that the Union
Minister has only 1/6th of the voting when it comes to appointment. He also opines that the
will of the people must also be considered and appointment by excluding the Executive is
“be wholly illogical and inconsistent with the foundations of the theory of democracy and a
doctrinal heresy”. One analysis to be taken from his judgement is that he promotes
transparency when it comes to appointment of judges. An idea which all 5 judges endorsed.

9) Conclusion.

In this judgement, the majority of the judges accept and have held that independence of
judiciary is a basic structure in appointment of judges. But most of them including the
dissenting judge have failed to answer the question of ‘judicial primacy’. Also another part to
understand is in future amendment to the Constitution, attempting to do away with the
Collegium, will either have to persuade another bench that the NJAC judgment is incorrect,
or maintain this concept of judicial primacy.