Each organ of the government in our democracy is responsible for a particular duty with regard to the maintenance of law and order in the society. While the legislature and the executive are in charge of law creation and implementation, it is for the judiciary to interpret these laws and check their validity against the threshold set by the constitution. Thus, the constitutional capacity of the judiciary rests in its power to interpret the statutes and enable its application at different points, when sought for.
The essential meaning of interpretation of statutes is to derive the meaning of a particular legislation, by making an attempt to ascertain the intention of the Parliament when it enacted the disputed legislation. While discharging this function, the court focuses solely on the words used in the disputed law, thus being limited in its freedom to interpret. A key feature of a democratic society, the judiciary’s power to interpret a statute is closely associated with its function of judicial review that enables the declaration of any law as unconstitutional, when tested against the provisions and boundaries of the constitution.
Traditionally, there have been three primary rules of interpretation that the judiciary has relied upon to determine the actual meaning of a legislation. These rules include- the literal rule, the golden rule and the mischief rule which themselves have evolved over the course of time, to make room for the growing enthusiasm of judicial activism.
The literal rule of interpretation is simple in terms of assessing the natural meaning of the legislation without considering what it might mean or searching for the legislative intent behind the law. This rule is particularly limiting of the judges in their power to use their opinions in deriving the possible meaning of the disputed legislation. The golden rule of interpretation is used when the mere grammatical construction of a legislation does not serve the purpose of giving a meaning beyond any doubt. The court then considers the context of the law, within the boundaries of its spirit, to arrive at its actual meaning. This rule is beneficial in terms of bringing the law within the lines intended by the Parliament. The mischief rule is the widest rule of interpretation that allows the judiciary to discover the intent of the legislature by analysing the original mischief that the disputed law sought to correct. This particular rule promotes the evolutionary approach of interpretation that allows the law to develop and adapt to the requirements of the society.
Judicial Appointment is a key issue that has time and again unearthed the ghosts of deep suspicion between the Judiciary and the other two organs of the government. The agenda of this article is to integrate the above-mentioned rules of interpretation with the primary research question regarding the interpretation of Article 124 of the constitution, that has evolved over the years, through numerous contentions at the Hon’ble Supreme Court of India and thereby derive a conclusion that provides a basis for answering both the questions in the affirmative while seeking for solutions for the same.
The cornerstone of a democracy is the rule of law that depends primarily on the supremacy of the constitution. Posing a threat to this basic foundation is the existing system of appointment of judges, that has drawn opposition and disapproval from various sectors of the society, and more recently, from the judges of the Hon’ble Supreme Court themselves. The Indian Constitution confers power on the President to appoint the judges of the Supreme Court and the various High Courts. However, in the exercise of this power, the President should act in consultation with the Chief Justice of the Supreme Court who shall from time to time give his recommendation with regard to the appointment of judges. This procedure of appointment is what is constitutionally prescribed. Over the years however, the prescribed process has been significantly altered in the name of judicial independence to allow a collegium of Supreme Court judges to have the final say in the appointment and transfer of their companions. The collegium, made official in the second judge’s case consists of the Chief Justice of India and four other senior judges of the Supreme Court, as clarified by the Special Reference of 1998.
The crafty collegium, made legal by the above case law has effectively reduced the role of the executive to one of conformity. The Hon’ble Supreme Court, through its various methods of interpretations, masked in the wide blanket of judicial activism has ‘bound’ the executive to appoint judges according to the recommendations made by this collegium. The rule, presently being followed is the main point of contention in this article, as being interpreted according to the convenience of the court- with the meaning of ‘consultation’ effectively made to mean ‘concurrence’. The powers of the collegium hand a power of veto to the Chief Justice of the Hon’ble Supreme Court, the very proposition feared by the Father of the Constitution, Dr. BR Ambedkar. As a result, the problems created are plenty, ranging from inefficiency of the courts by virtue of backlogs to the persistent accusations of nepotism, unaccountable appointments and elevations in the lower courts as well as the Hon’ble High courts across the country.
The article is divided into various chapters that trace the path of the evolution of the present system of judicial appointments. The focus is to create a narrative that could help analyse the existing system through a critical lens, with primary focus on the possible violation of the doctrine of separation of powers leading to an undermining of the constitution- the primary research area. The interpretation of Article 124 of the constitution has effectively vested absolute power in one of the organs of the government, which is against the basic features of the constitution, thus violating the measure of checks and balances, envisaged by the framers of the constitution.
This paper will also make an attempt at achieving the best possible interpretation of Article 124 of the constitution by inheriting the various principles of interpretations, supplemented by credible sources, including case laws. An important chapter of the article is an analysis of the Constituent Assembly debate that discussed in depth, the law regarding judicial appointments before inserting it in the constitution, with a keen eye on the original intent theory.
Further, the judiciary’s enthusiasm in the area of judicial activism, specifically in the creation of the collegium shall be critically analysed with regard to the rules of interpretation to make a test for constitutionality. Based on this result, the National Judicial Appointments Commission shall be analysed as a possible replacement of the existing collegium system. Finally, Article 124 of the Indian Constitution shall be comparatively analysed with other common law jurisdictions, such as the United States and the United Kingdom, where the procedure is considerably different than the one followed in our country. This analysis will assist in obtaining a better understanding of the present process and suggest probable modifications to the same.
Article 124- Evolution and Interpretation-
Judicial Appointments is at the heart of an efficient judiciary that is independent and free from all biases. Article 124 of our constitution comprises of the provisions necessary to ensure such appointments to the judiciary that effectively carry out the functions of legal interpretation and application, while ensuring constitutional supremacy. That said, the very Article has undergone stages of interpretation over the years, where the Hon’ble Supreme Court has wielded its power to establish a procedure of appointment that has raised several questions regarding validity, transparency and efficiency of the judiciary.
The series of events leading to the evolution of Article 124 began during the emergency, when the independence of the judiciary was undermined by a large- scale transfer of judges, effected by the executive. The Article initially came into consideration in S.P Gupta v. Union of India, in which a seven-judge bench of the Hon’ble Supreme Court adopted a literal interpretation of the provisions to hold a narrow definition of the word ‘consultation’ to not mean ‘concurrence’. In a lengthy judgment, the Hon’ble Court interpreted that the consultation ‘with each of the three constitutional functionaries, the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India means a full and effective consultation’ which required a due deliberation and a complete disclosure of material facts before the consultant. Further, the President was empowered to over-ride the opinion given by the constitutional functionaries with the view of creating transparency by keeping the executive in check through the legislature and ultimately, the people. This interpretation by the Hon’ble Court, although well intended towards ensuring constitutional supremacy and transparency, was quite narrow to give full effect to the provisions of the article, that required a fine balance between the doctrine of separation of powers and the independence of the judiciary, both of which were already constituents of the basic structure of the constitution.
The above interpretation by the Hon’ble Court was taken into consideration in the second judge’s case, that led to a major development in the evolution of the present system of judicial appointments. Adopting a very wide interpretation tool, the Hon’ble Court overruled the S.P Gupta decision holding that ‘in the matter of appointment of judges, the Chief Justice of India will not only have primacy but is determinative as well.’ It further interpreted the meaning of ‘consultation’ to mean a ‘participative consultative process’ where no appointment to the judiciary could be made without the approval from the Chief Justice of India. Effectively, the ruling in this case transformed the meaning of ‘consultation’ to mean ‘concurrence’, thereby handing over absolute power to the judiciary in determining its own appointments. The need for a harmonious construction of Article 124 of the constitution had evolved from a very narrow and literal interpretation to a very wide understanding of the law, that in essence violated the basic structure, once again. The harmonious construction was necessary in terms of empowering the provisions of Article 124, that required an inclusive consultative process between all three organs of the government while also making sufficient room for the effective empowerment of the doctrine of separation of power and the independence of the judiciary. The judgment was also crucial in terms of officially allowing for the formation of a collegium, at both the Hon’ble High Courts and the Hon’ble Supreme Court, thereby creating a body of judges who would operate behind closed doors to make judicial appointments, whose opinion (effectively, an order) could not be deviated from, by any organ of the government.
On account of the former Chief Justice MM Punchhi, a Presidential Reference was made in 1998, the Special Reference of 1998 where the Attorney General of the time, did not deem it necessary to challenge the interpretation of the second judge’s case. As a result, a harmonious construction of Article 124 did not see the light of the day yet again and the Hon’ble Court upheld a majority of the premise laid down in the second judge’s case. However, the Hon’ble Court did tighten its grip around the absolute power it had given itself under the Article by increasing the strength of the collegium, to include more judges, led by the Chief Justice, who together were given the free hand to dictate appointments to the judiciary. The existing system of judicial appointments has evolved through erroneous interpretations that have failed to strike a balance between the doctrine of separation of powers and the independence of the judiciary, causing a deviance from the basic structure of the constitution.
The Original Intent Theory-
In the debate between Justice Scalia and Justice Brier, two fundamental divisions of interpretation of statutes were brought to light. One of them, the originalist approach, laid emphasis on ascertaining the meaning of a statute by determining the original intent envisaged by the framers of the time. The proponents of this theory reject the evolutionary approach, primarily to avoid the imposing of any personal values possessed by the judges while interpreting a statute. Instead, primacy is given to the original intention behind the statute reducing the role of the judges to one of interpretation only, limiting their role in the field of judicial activism.
With respect to Article 124, a consideration of this theory of interpretation serves an essential purpose because the intention of the framers of our constitution have been captured in the Constituent Assembly debates. More specifically, the current interpretation of the word ‘consultation’ to mean ‘concurrence’ was disagreed in the Assembly debate, with Dr. B.R Ambedkar expressing that it would be a dangerous proposition to allow the Chief Justice, a practical veto in matters of judicial appointments. He went on to opine that the position of the Chief Justice, although presupposed to be one of an impartial nature and that of eminence, is still held by a person who does have the sentiments and prejudices of a common person, that cannot be ignored. Similarly, he expressed that the provisions of judicial appointments should be wary of not handing over exclusive power to either the President, Executive or the Legislature, thereby creating a system of inclusive consultation that would not require mandatory concurrence with any functionary of the constitution. To summarise, the original intention behind Article 124, as envisaged by the Constituent Assembly was to adopt a method of judicial appointments that would not transfer an absolute power to any of the organs of the government, while promoting a consultative process between these organs that would ensure the independence of the judiciary in a democratic nation.
In the first two decades of judicial appointments, the uniform practice was to elevate the senior-most judge to the position of the Chief Justice in the Hon’ble Court. It was a deviance from this general practice by the Executive of the time that called upon the Hon’ble Court to interpret Article 124, from an evolutionary point of view, that resulted in the establishment of the present system of collegium and concurrence. It is difficult to pin the entire blame on the Hon’ble Court that might have thought it to be necessary to adopt a system that could preserve the independence of the judiciary at a time when the country suffered a political turmoil, that saw the government utilise the provisions of the constitution according to its whims and fancies. However, it was the duty of the Hon’ble Court to modify the system in such a way as to be in terms with the one envisaged by the framers of the constitution. Instead, the apex judicial body decided to go with the dangerous proposition rejected by the father of our constitution by establishing a procedure of judicial appointments that handed over exclusive power to one of the constitutional machineries involved in Article 124. In the present legal environment where judicial activism is reaching out to areas beyond its domain, the separation of power doctrine is facing a considerable threat. The author is of the firm opinion that the interpretation of Article 124 was one of the major contributors to bring in such a system of judicial interpretation that seeks to reach beyond its limits with a nonchalant view to the original intention of the framers of the constitution.
The Judicial Activist Role-
The idea of Judicial Activism rests firmly within the evolutionary approach to interpretation that considers the spirit of the law with regard to the changing times in a society. It is the polar opposite of the idea of judicial restraint that requires the judiciary to work within the framework of legal precedents and strict interpretations of existing provisions of law. The Indian Constitution was born out of the ideas of the West with key elements inherited and imposed on a semi-backward society that had just attained independence. It is for this reason that the judiciary of our country had the responsibility of being more active in terms of helping the Indian society modernise and adapt to the evolving principles of law and order, across the globe.
The first signs of judicial activism in India was observed in Golak Nath v. State of Punjab, where the Hon’ble Supreme Court held that Part III of the Constitution was beyond the scope of amendments under Article 368, although no such mention was found in the constitution. However, it was the creation of the basic structure doctrine in Keshavanand Bharti v. State of Kerala that culminated the era of judicial activism in the country, in which the Hon’ble Court effectively carved out an amendment to Article 368 of the constitution. Another key arena of judicial activism is the wide interpretation of Article 21 that has expanded the right to life into a very wide ambit that is largely inclusive in nature.
Judicial over-reach has been an area of contention that needs addressal at the earliest. In this article, the over-reach is analysed in terms of the Hon’ble Court’s interpretation of Article 124 of the constitution that is widely regarded to be toeing the line of the doctrine of separation of powers. The post-emergency inter-institutional tussle is commonly believed to be the cause for the Hon’ble Court to adopt a system of judicial appointments without any interference from other organs of the government. However, this proposition fails to hold any ground in the time period that followed. The early 1980’s and the 1990’s saw several coalition governments that signified a weak union whose priority was to hold on to the government. It is during this period that the opportunistic nature of the Judiciary came to the fold when the Three judges’ case, followed by the legalisation of Public Interest Litigations, substantive relaxation in locus standi and huge strides of judicial activism and populist tendencies transpired. A classical example of weak union and an opportunistic judiciary, the Hon’ble court had transformed India into the only democracy where the judiciary could appoint its own judges, with absolute power vested in itself. By virtue of creating a such a system of judicial appointments, the Hon’ble Court set in motion the trend of judicial over-reach that has time and again caused outrage in major sections of the society.
The implications of such over-reach are inherently dangerous in a democracy. Through the collegium system, the people’s faith in the judiciary has considerably reduced, the justice system is suffering from a severe back-log, accusations of nepotism and corruption are constantly unfolding, (the prime example being the first of its kind press conference held by the judges of the Hon’ble Supreme Court), the conflict between the legislature and the judiciary has increased multi-fold and most importantly, the spirit of our constitution whose basis is the doctrine of separation of power is exposed to severe violations, putting the foundations of democracy at risk.
While judicial activism is encouraged in a developing society such as ours, an unmistakable issue has also risen by virtue of the same. The urgent call is for the judiciary to strike a balance between activism and restraint, without which the very basis of our democracy stands on the verge of being compromised.
The National Judicial Appointments Commission-
Independence of the judiciary is a key feature of a democratic nation and the debate regarding the appointments to this organ of the government has always been a cause for concern, ever since the Constituent Assembly sought to make provisions for the same. Over the years, numerous committees have been formed to advise the legislature in framing efficient and transparent laws regarding judicial appointments. The Ad Hoc committee report of 1949, the 121st Law Commission Report of 1987 and the Venkatachalaiah Committee Report of 2003 have all suggested the formation of a committee, including the Judges of the Hon’ble Courts and the members of the other organs of the government to work in close relation while making judicial appointments. The idea of a National Judicial Appointments Commission was introduced in 2003 but took form for consideration in both the Houses only in 2014, through the National Judicial Appointments Commission Bill, 2014. (NJAC)
The NJAC Bill, 2014 brought with it a necessary provision of law aimed at replacing the crafty collegium with a commission that would include a member of the legislature and two other eminent personalities who may additionally recommend names of judges for higher court positions. While including non-judicial members in the committee to appoint judges, the NJAC restores the position of the Chief Justice at the top as the Chairperson of the committee along with two of the senior-most judges of the Supreme Court for his assistance. Additionally, the two eminent persons had to be appointed by a committee that would include the Chief Justice, the Prime Minister and the Leader of the Opposition at the Union Legislature. The proposed system of appointment sought to strike a balance of power between the legislature and the judiciary with no particular branch having supremacy over the other. In fact, the NJAC also sought to involve the civil society in the appointment process in order to re-instil the declining transparency and good faith.
The NJAC, as contemplated by the legislature was aimed at revolutionising the process of judicial appointments. However, after its institution, the Hon’ble Court took it up for consideration in the Supreme Court Advocates on- Record Association v Union of India where the majority view interpreted the commission to be unconstitutional for being violative of the basic feature of the constitution, thereby upholding the existing collegium system. The interpretation adopted by the court empowered itself to preserve the independence of the judiciary by including it within the basic feature of our constitution, thus excluding other constitutional functionaries who, in fact are mandated by the constitution to be a part of the inclusive consultative process required for judicial appointments. The majority opinion- “that clause (c) of Article 124A (1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC”, treads on the path of an inaccurate interpretation of the constitution as the Hon’ble Court once again seeks to reserve the absolute right to appoint judges by shutting out the other organs of the government.
In his dissenting opinion, J Chalameshwar made an important distinction between the ‘basic feature’ and the ‘basic structure’ of the constitution by remarking that although the independence of the judiciary is a part of the basic structure, priority must be accorded to preserving the basic feature of our constitution, which is to ensure that no constitutional functionary is vested with absolute power to carry out any legal process. He also pointed out the lack of accountability, transparency and the general good faith in the collegium system and found it to be illogical and against the basic tenets of our constitution to exclude the other constitutional functionaries, a position expressly rejected by the framers. The dissenting opinion, according the author was the required form of interpretation, that sought to harmoniously integrate the organs of the government to work together while making judicial appointments.
Although not strictly within the framework of Article 124, the NJAC was a legislation that was the closest to give effect to a harmonious construction of its provisions. Debatable parts of the legislation are primarily with regard to the inclusion of the civil society in the appointment process which, in the author’s opinion does not fit into the harmonious construction of the Article. However, the need was for more transparency and accountability in judicial appointments and the legislation sought to achieve the same by making the common people a part of the process. On the whole however, the NJAC on its own would be an independent body that integrated various constitutional functionaries to be a part of the consultative process to make judicial appointments, as prescribed by the constitution of India. The declaration of its illegality raises some serious questions about the unhindered and unchecked power of the judiciary to interpret the constitution. It has to be kept in mind that the Judiciary has been constitutionally empowered to strike down laws, through the process of judicial review. However, it does not have the power to create laws and force its implementation, as evident with the collegium system.
Comparative Judicial Appointments- Laws and Policies
As a country governed by a constitution largely influenced by the Western ideas of democracy, we have failed to accommodate and compare the procedures of judicial appointments widely followed in developed common law nations. The author is of the belief that in order to affect a much-needed change in the existing system of judicial appointments, a comparative analysis of the process in other leading countries is necessary. Such an analysis will assist in realising the existing gaps with regard to transparency, accountability and the constitutionality of the process of judicial appointments, presently being followed in India.
The United States of America has a distinct process of judicial appointments that is widely considered to be political in nature with the President and the Senate playing a pivotal role in the entire process. The constitutionally prescribed procedure requires the President to first nominate a candidate after the vetting process is carried out by the White House staff. Once the nomination is made, the name is sent to the Senate for confirmation and signing, thereby politicizing the entire process, with the party in majority effectively calling the shots. Moreover, the President being politically motivated himself has the first option to nominate a candidate, on the recommendations made by the Senate, to the judicial vacancy, that kick starts the process of politicization of the appointments. The Senate Judiciary Committee that performs the investigations of the nominee is the sole independent body involved in the system of judicial appointments followed in the United States.
Although the standards of judicial selection are transparent, accountable and based on integrity, the author is sceptical about such a system due to its dependency on the legislature to have the final say. Resting the power of appointments on the legislature is a threat to the very foundations of democracy as it compromises the independence of the judiciary, by appointing judges that bring with them a certain dominant political ideology. A glance through the history books of the United States judiciary would suggest a divide in the Supreme Court with regard to the judges’ political ideology that is often seen in their opinions. The politicization of the process, although not ideal for a democracy, has not been disputed in the United States as it is constitutionally prescribed.
In a country such as India, the procedure followed in America can never be implemented or even thought of. This is due to our emphasis on the separation of powers doctrine and the independence of the judiciary, that has over time engulfed the power to make judicial appointments. On the other hand, the supremacy of our constitution does not make any room for the involvement of the Parliament in judicial appointments. Under no scenario can a system be established where the Legislature could vote on the nominations made to judicial positions across the country, nor was such a system envisaged by the framers of our constitution. The take away, if any, from the system established in the United States is the strict adherence to the procedure prescribed by the constitution. Their constitution mandates a process that has the effect of politicizing the process of judicial appointments and it has been followed over centuries without the Apex Court coming up with methods to usurp control over such appointments, in the mask of judicial activism. Another positive element that may be inculcated is the level of transparency and accountability that is ensured during judicial appointments. A prime example is the most recent Supreme Court appointment of Brett Kavanaugh, a conservative whose nomination sparked wide-spread protests and debates across the country with charges of sexual harassment disclosed on investigation that was a part of the appointment procedure. Although his appointment is not supported widely, the very fact that the system could expose such allegations against him highlights the transparent nature of the appointment process. In India, the present system does not allow for such disclosures as the appointments are made behind closed doors by judges who discuss among themselves and finalise names that are made mandatory for appointment by the President. The process is not inclusive of any other organ of democracy, unlike the United States, where the entire process is for the people of the country to watch and debate upon.
A more relatable form of judicial appointments is the process followed in the United Kingdom, whose form of governance has inspired much of India’s version of democracy and legislation. Similar to the National Judicial Appointments Commission, the United Kingdom has employed the Judicial Appointments Commission, an independent commission that is put in charge of selecting candidates for judicial offices, across the country. This Commission was created by virtue of the Constitutional Reform Act, 2005 that sought to ensure that the appointments did not carry with them any sort of political influence. Comprising of 15 commissioners, the members are appointed through open competition from varying fields of interest ranging from judicial persons to common persons who possess certain professional qualification to be able to decide effectively in matters regarding appointments. A key feature of the process that ensures judicial independence is the power of the Lord Chief Justice (the Appropriate Authority) to reserve the right to accept or reject the recommendation made by the Judicial Appointments Commission. While exercising the right to reject a recommendation, the Appropriate Authority also has the duty to give a written explanation for such rejection that is then contemplated by the commission. Such a procedure is holistic in nature, upholding the essentials of judicial appointments, namely, the independence of the judiciary, the separation of powers and the element of transparency and accountability.
Through the Constitutional Reform Act of 2005, the United Kingdom brought a system that could effectively allow the legislature to guide the Judiciary in the appointments process of judges. It creates a balance between the powers of the three organs of the government by allowing the judiciary to be independent in selecting judges but also giving minimum power to the executive and the legislature in constituting the commission that could catalyse the process, without any political clout hanging over them. This was the exact practice envisaged by the National Judicial Appointments Commission in India, where a similar body would act with the Chief Justice as the chairperson ensuring inclusive participation from the three organs of the government, while still making adequate room for judicial independence in the selection process. The author believes that the Judicial Appointments Commission is a productive method of judicial appointments that is suitable to our country where the need is urgent for an overhaul of the crafty collegium that works in secrecy and lacks accountability.
The interpretation of Article 124 has time and again tried to undermine the supremacy of the constitution of India by ignoring the intentions of the framers of the constitution and establishing a system that was expressly rejected during the drafting of the chief legal instrument. The rejection of the NJAC highlights the mindset of the judiciary in our country, that through various interpretation tools has usurped absolute power in matters regarding judicial appointments and administration. In addition to violating the basic feature of the constitution, the Hon’ble Supreme Court has also caused the justice system to function at a snail’s pace with backlogs running into the millions. At the end of the day, it is the common person who has to suffer by waiting for years together for effective justice disposal, that does not seem to be the cause for concern in the judiciary.
Despite the Hon’ble Supreme Court calling for more transparency in the existing collegium system, any kind of change is yet to be seen. The author believes that the collegium system is absolutely ineffective in terms of fair and transparent appointments and calls for a complete overhaul of the system, that can be brought about by the right interpretation of Article 124. With the NJAC being interpreted as unconstitutional, the ray of hope for an accurate interpretation seems to be declining. However, what is needed is a tool of interpretation that is able to accommodate the various elements of the government in the appointments process by not granting absolute power to one of the organs. A balance of power is required urgently before we face a situation where another familial dynasty ends up presiding over an organ of the government for years together, this time being the judiciary.
 Judicial Appointments in India and the NJAC Judgment: Formal Victory or Real Defeat- Dr. Anurag Deep, Shambhavi Mishra, Jania Law Journal, Vol 3, 2018.
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This article is authored by Satvik Upadhya, student of B.A. LL.B (Hons.) at Jindal Global Law School.
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