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IS A JUDICIAL APPOINTMENTS COMMISSION VIOLATIVE OF THE BASIC STRUCTURE OF THE CONSTITUTION OF INDIA ? ATHARVA SONTAKKE1 ABSTRACT The 121st Constitutional Amendment seeks to scrap the collegiums system of judicial appointments and the National Judicial Appointments Commission Bill establishes a commission featuring representatives from both the executive and the judiciary to appoint judges to the higher judiciary. Critics have already labelled the Bills as violative of the independence of the judiciary which is part of the basic structure of the Constitution. This Article attempts to examine whether the Bills actually violate the basic structure of the Constitution. I begin with a conceptual understanding of judicial independence in Indian as well as international context. Thereafter, the Article critically analyzes the provisions of the Bills with respect to the various tests propounded by the Supreme Court to determine the content of basic features. The Article concludes that the present Bills might be prone to constitutional invalidity. However, the very concept of a commission does not violate the basic structure as it is in consonance with the principle of checks and balances and supplies much needed accountability in the appointment scheme.

KEYWORDS: appointments, judicial independence, basic structure

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3rd Year, B.Sc. LL.B. (Hons.), Gujarat National Law University Email: [email protected]; [email protected] Contact No. +91 9930335190

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1. INTRODUCTION Parliament of India recently passed the 121st Constitutional Amendment Act, 2014 along with the National Judicial Appointments Commission Bill, 2014 which seek to introduce a commission (hereinafter the “NJAC”) to make recommendations for judicial appointments to the higher judiciary, thereby replacing the collegium system of appointments. A constitutional challenge to the bills is imminent on the ground of violation of the basic structure of the Constitution as propounded in Kesavananda Bharati2 case. The fact that ‘rule of law’, wherein judicial independence is a quintessential attribute, is a facet of the ‘basic structure’ of the Constitution of India is uncontested in constitutional jurisprudence.3 The objective of this Article is to assess whether the very idea of a judicial appointments commission is antithetic to the idea of judicial independence. Also, the Article analyzes the provisions of both the bills in light of various tests propounded by the Supreme Court to identify basic features of the Constitution and whether the bills violate judicial independence. The Article proceeds in subsequent parts as follows. Part 2 establishes a conceptual understanding of the principle of judicial independence. I do this by comparing various international norms and acceptable standards of judicial independence. This part gives a clear understanding of the difference between institutional independence and independence of individual judges as established under the broad principle of impartial adjudication. Then I compare this understanding of judicial independence to that as established in India by the Supreme Court which has effectively equated judicial independence with non interference of the executive which is a rhetorical understanding of the concept when compared with international norms. I also

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AIR 1973 SC 1461 Supreme Courts Advocates on Record Association v. Union Of India, AIR 1982 SC 149

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try to establish the link between judicial independence and appointments at a normative level. I conclude Part 2 by arguing that accountability is itself a facet of independence and that judicial independence must be construed in a relative sense rather than in an absolute sense. In Part 3, I compare appointment mechanisms of various jurisdictions in the world. Especially the mechanisms in United Kingdom and South Africa will be analyzed because in these countries a commission has been established for judicial appointments. With reference to some other jurisdictions too I study the extent of independence and accountability guaranteed by the appointment mechanisms by analyzing the degrees of democratic separation between the electorate and the appointed judges. Part 4 and 5 critically analyze the provisions of the passed bills with reference to judicial independence as a basic feature. Part 4 argues why the bills in their present form violate the basic structure, whereas Part 5 presents arguments in defence of the bills. I study the impact on basic structure by referring to various tests viz. ‘identity test’, ‘width test’, ‘overarching principles test’ as laid down in various judicial pronouncements. I specifically focus on the development of basic structure doctrine and its narrow application post I.R. Coelho.4 Finally, in Part 6, I conclude that although the very idea of an appointments commission ipso facto is not in violation of basic structure, the bills in their present form might be prone to constitutional invalidation. In the humble opinion of the author, a bill for judicial standards and accountability would introduce stricter oversight mechanism thereby strengthening judicial independence and checks and balances in the system. The inter-institutional equilibrium and a system of checks and balances which was envisaged by the

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I. R. Coelho v. State of Tamil Nadu , 2007 (2) SCC 70

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Constitution makers can be best achieved through a commission to decide appointments without compromising judicial independence.

2. CONCEPTUAL UNDERSTANDING OF JUDICIAL INDEPENDENCE

INTERNATIONAL NORMS AND GUIDELINES Judicial Independence, in international jurisprudence, connotes two things. Firstly, it connotes the state of mind of an individual judge which requires him to be impartial, unbiased and uninfluenced by external pressures while adjudicating disputes.5 Secondly, it connotes the relationship of the judiciary with other branches of the state, especially the executive.6 This status or relationship involves both individual and institutional relationships. The individual independence of a judge as reflected in such matters as security of tenure and the institutional independence of the court as reflected in its institutional or administrative relationships to the executive and legislative branches of government. This independence and impartiality of the judiciary rests on objective conditions or guarantees to exclude any legitimate doubt regarding the independence of the tribunal.7

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Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26. August to 6. September 1985, U.N. Doc. A/CONF.121/22/Rev.1, 1985 6 International Commission of Jurists, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, Practitioners Guide No.1,(2007) available at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/04/InternationalPrinciples-on-the-Independence-and-Accountability-of-Judges-Lawyers-and-ProcecutorsNo.1-Practitioners-Guide-2009-Eng.pdf (Last visited on January 21, 2014) 7 Article 6(1) of the European Convention on Human Rights, 1950 , April 11, 1950, 213 UNTS 221

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International law does not prescribe a particular process of appointment of judges, but it only mandates that the process must ensure that merit and integrity are the only relevant factors while appointing judges.8 The method of appointment, especially in India, and its relevance to the concept of judicial independence presents a conflicting picture. As of today the collegiums system of appointment assures complete institutional independence of the judiciary because the executive or the legislature have no role to play in appointments and there is complete separation of judiciary from other institutions as regards appointment. However, the same process compromises on the objective and procedural guarantees which also form an important part of judicial independence.9 These guarantees are nothing but safeguards within the system of appointment which ensure judicial accountability which is a crucial facet of the concept of judicial independence although not well recognized in the Indian jurisprudence as being a part of judicial independence. Indian jurisprudence recognizes an absolute form of judicial independence as regards appointments. Therefore, it is important to recognize that an appointments process that assures absolute independence must give way to a process that ensures relative judicial independence, i.e. a process which strikes balance between the need to keep a degree of separation between judiciary and other institutions and the need to address judicial accountability. The International Bar Association says that the appointment of judges should be a strong factor of independence itself and it cannot be left to the exclusive discretion of the Executive and Legislative.10 The European Association of Judges directly states that selection must be performed by an independent

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supra, note 6 http://www.ohchr.org/Documents/Publications/training9chapter4en.pdf 10 International Bar Association Standards of Judicial Independence, in Judicial Independence 388, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster (1985) 9

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body which represents the judges.11 The Mt. Scopus Approved Revised International Standards of Judicial Independence state that the method of judicial selection shall safeguard against judicial appointments for improper motives and shall not threaten judicial independence.12 The principle of democratic accountability should be respected and therefore it is legitimate for the Executive and the Legislature to play a role in judicial appointments provided that due consideration is given to the principle of Judicial Independence. The recent trend of establishing judicial selection boards or commissions in which members or representatives of the Legislature, the Executive ,the Judiciary and the legal profession take part, should be viewed favourably, provided that a proper balance is maintained in the composition of such boards or commissions of each of the branches of government.13 Similarly, the Montreal Declaration Universal Declaration on The Independence of Justice state that there is no single proper method of judicial selection provided it safeguards against judicial appointments for improper motives.14 Participation in judicial appointments by the Executive or Legislature is consistent with judicial independence, so long as appointments of judges are made in consultation with members of the judiciary and the legal profession or by a body in which members of the judiciary and the legal profession participate.15

POSITION IN INDIA AND INTENT OF CONSTITUTION MAKERS

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supra, note 6 International Bar Association Standards of Judicial Independence, in Judicial Independence 637, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster (1985) 13 Id. 14 Universal Declaration on the Independence of Justice, in Judicial Independence 447, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster (1985) 15 Id. 12

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The Constituent Assembly Debates indicate that the framers of the Constitution equated judicial independence to non-politicization of the judiciary.16 The threat of appointment of pliant judges by the executive was apprehended.17 In the words of Jawaharlal Nehru, the judges would be “of the highest integrity... people who can stand up against the executive government and whoever may come in their way.”18 The consultation mandate, however, was made with a fair assumption that the Chief Justice of India (CJI) would be the best person to assess the merits of a candidate and thereby ensure that judges are appointed only on merit, one of the many aspects deemed to ensure independence of the judiciary.19 The key issue under consideration during the debates on judicial appointments was choosing a system that best secured judicial independence.20 K.M. Munshi believed that the major ramifications of functional judicial independence would be on the need to ensure fixed salaries once an appointment is made, the process of removal and postretirement employment of judges.21 The concerns of T.T. Krishnamachari during the discussion on the need for nuanced functional independence are noteworthy where he warned the assembly not to get carried away with the idea of independence as that would result in a judiciary, which would become an “Imperium in Imperio”22, operating as a sort of superior body to the general body politic.’

On the same note, Alladi Krishnaswamy Ayyar

expressed his apprehensions of the elevation of judicial independence to dogma which would result in an unfettered judiciary that could potentially

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Granville Austin, The Indian Constitution: Cornerstone of a Nation 175-6, Oxford University Press (2003). 17 Arghya Sengupta, History’s lessons for constitutional reform , Seminar: Constitutional Challenges (2013) available at: http://india-seminar.com/2013/642 htm (Last visited on January 21, 2014). 18 Constituent Assembly Debates, Vol. VIII, pp. 246-247. 19 Id. 20 Constituent Assembly Debates, Vol. VIII, pp. 229-399 21 Constituent Assembly Debates, Vol. VIII, p. 220. 22 Constituent Assembly Debates, Vol. VIII, p. 389.

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assume the role of a “super legislature or super executive”23 and such consequences are both illegitimate and improper. Having taken due note of the public accountability of the executive as well as the colonial experience with abuse of unfettered executive discretion in judicial appointments, this median mechanism that ensured sufficient checks and balances between the two was finally agreed upon. Thus, the origin of broad-based systems of judicial appointments, like a NJAC as envisaged by the Amendment, that ensures inter-institutional equilibrium can be traced back to the intent of the framers of our Constitution.24 Subsequent to repeated allusions to abuse of executive power in judicial appointments in the 14th Law Commission of India report25, the issue of nature of consultation process resurfaced. In Union of India v. Sankalchand Sheth26 and S. P. Gupta v. Union of India27 , two landmark decisions on the matter, the Hon’ble Supreme Court of India declared that judicial independence is the basic structure of the Constitution and is reflected by the mandatory, “full and effective” consultative process and that the primacy, however, shall prevail with the executive. Thus, the judicial interpretation of ‘independence’ at this stage did not warrant primacy of opinion of the judiciary in judicial appointments. At this juncture, the words of Justice Bhagwati in the S. P. Gupta28 case are noteworthy; “We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court

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Constituent Assembly Debates, Vol. XI, p. 837. supra,note 17 25 Law Commission of India ,14th Report on Reforms of the Judicial Administration, 1958 26 Union of India v Sankalchand Sheth, (1977) 4 SCC 193. 27 S. P. Gupta v Union of India, AIR 1982 SC 149 28 Id. 24

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or High Court Judge, the recommending authority should be more broadbased and there should be consultation with wider interests.” The judicial pronouncements reiterate the intent of the framers of the Constitution on establishment of broad-based systems involving consultation with wider interests like that envisaged by the impugned Amendment. The judicial conception of ‘independence’ changed drastically in the matter of Supreme Court Advocates on Record Association v. Union of India

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(Second

Judges Case) where the Hon’ble Supreme Court of India overruled the earlier interpretation of the consultative process. The present judicial collegium system was established and primacy of opinion with respect to judicial appointment lay with the collegium in accordance with the recommendations of the LCI in the 14th Law Commission Report.30 This view was later reiterated by the Hon’ble Court.31 Thus, the apprehension of executive abuse of power was transformed into an opportunity to establish a system without required checks for judicial abuse of power.32 In my humble submission, this interpretation of the Court does not reflect the correct position of the law and warrants reconsideration. The Constitution of India provides for certain explicit safeguards that ensure judicial independence viz. security of tenure, immunity from disadvantageous alteration of terms and conditions of service by the Parliament etc. The overt stretching of the interpretation of judicial independence beyond the confines of the Constitution defies the conception of judicial independence as envisaged by the literal interpretation of the text of the Constitution of India.

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(1993) 4 SCC 441. supra, note 25. 31 Special Reference No. 1 of 1998 AIR 1999 SC 1 32 supra,note 17 ; S P Sathe, Judicial Activism; The Indian Experience, 6 Wash. U. J.L. & Pol'y 29 (2001) 30

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Independence of Judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution.33 Subsequent to the Second Judges Case the judiciary was vested with unfettered powers and the final say in judicial appointments resulting in an effectively self-appointing Judiciary. In the cogent opinion of numerous scholars and jurists, the Judiciary became a “self-perpetuating oligarchy”– an imperium in imperio as feared by the framers of our Constitution Senior advocates like Fali Nariman and TR Andhyarujina have severely criticized the judicial collegiums system which has become devoid of reasonable standards of transparency and accountability.34 VR Krishna Iyer J. says, “The infinite fact remains that many judges have lost their conscience because of a curious sense of independence without accountability.”35

Independence and

accountability of the judiciary cannot exist in isolation and are mutually indispensable.36 This position was also reiterated by the 214th Report of the Law Commission of India in 2008 which proposed a reconsideration of the Judges Cases and a change in the appointment procedure.37 After a succinct normative analysis of judicial independence, Arghya Sengupta says that the rationale for judicial independence plays a key role in defining the contours of judicial independence.38 It is clear that judicial

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Registrar (Admn.), High Court of Orissa v. Sisir Kanta Satapathy, (1999) 7 SCC 725 Fali Nariman, Before Memory Fades An Autobiography 387-406, Hay House (2010) 35 T R Andhyarujina, Appointment of Judges by Collegium of Judges in Santosh Paul (ed.) Choosing Hammurabi: Debates on Judicial Appointments 93-96, Lexis Nexis (2009) 36 Justice Ruma Pal, ‘An Independent Judiciary’ in Santosh Paul (ed.) Choosing Hammurabi: Debates on Judicial Appointments (Lexis Nexis 2013). 37 Law Commission of India, 214th Report on Proposal for Reconsideration of Judges cases I, II and III - S. P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates-onRecord Association Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739, 2008 38 Arghya Sengupta, Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Enquiry, 5 Indian Journal of Constitutional Law 99 (2011). 34

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independence is needed to ensure impartial adjudication of disputes.39 Therefore, firstly, independence of an individual judge is required to ensure impartial adjudication of a dispute; secondly, independence is one of several factors along with accountability which leads to impartial adjudication.40 Thus, judicial accountability is implicit in the concept of judicial independence.

3. APPOINTMENT MECHANISMS IN OTHER JURISDICTIONS It is noteworthy that none of the major democracies in the world have a selfappointing judiciary in place.41 The interpretations of judicial independence also do not involve a narrow interpretation of the appointments process as indicated by judicial dicta from certain foreign precedents discussed hereinafter. In the United States, the doctrine of strict separation of powers has been constitutionally entrenched. Article 2 of the US Constitution gives the President the power to appoint Judges with the consent and advice of the Senate. Thus, the US Constitution recognizes judicial appointment process as an essentially executive function. Judicial independence is envisaged only for the ‘judicial functions’ post-appointment as defined under Art.3 of the Constitution. No explicit nexus of the appointment process itself with judicial independence. In Northern Pipeline Co. V. Marathon Pipeline Co. the Hon’ble Court observed as under,

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Id. Id. 41 United Nations Office on Drugs and Crime, Resource Guide on Strengthening Judicial Integrity and Capacity, (December, 2011) available at: http://www.unodc.org/documents/treaties/UNCAC/Publications/ResourceGuideonStrengtheni ngJudicialIntegrityandCapacity/11-85709_ebook.pdf > (Last visited on January 21, 2014). 40

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“The judicial power of the United States must be exercised by judges who have the attributes of life tenure and protection against salary diminution specified by Art.III. These attributes were incorporated into the Constitution to ensure the independence of the Judiciary from the control of the Executive and Legislative Branches.”42 Writing on the independence of the judiciary in the title on “Constitutional Law” in the Stair Memorial Encyclopaedia, Lord Fraser of Tullybelton identified security of tenure and immunity from suit as the two most important ways of ensuring that judges perform their duties impartially and without fear of the consequences.43 In the Starrs and Chalmers case, the Hon’ble Court pertinently observed; “However, appointment by the executive is consistent with independence only if it is supported by adequate guarantees that the appointed judge enjoys security of tenure.”44 In Valiente v. The Queen, Le Dain J. who delivered the judgment of the court, stated at page 169–170: “The word ‘independent’ in section 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the

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(1982) 458 U.S 50. Lord Fraser, Stair Memorial Encyclopedia, vol. 5, paras 663–667 44 Starrs and Chalmers v Procurator Fiscal, Linlithgow Appeal Court, High Court of Justiciary [2000] H.R.L.R. 191 43

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Executive Branch of Government, that rests on objective conditions or guarantees.”45 Thus, the Canadian experience also contemplates the term independence of the judiciary in the context of ‘objective guarantees’ with no explicit nexus to the appointment process. Therefore, the narrow interpretation of the term ‘independence’ by the Hon’ble Court in the Second Judges Case cannot be deemed to be a constitutionally sound interpretation of the law as functional independence is ensured only post-appointments by objective guarantees and judicial individualism and partiality as a facet of judicial independence can only be assured by facilitating appointment of individuals of integrity and competence on the basis of wider consultative process as in a broad-based NJAC with sound checks and balances. DEMOCRATIC DEGREES OF SEPARATION AND ACTORS INVOLVED The extent of accountability depends on the actors involved in the appointment process and also on the number of layers interposed between the electorate and the judges through the process of appointments.46 Different jurisdictions in the world adopt different degrees of democratic separation. The US follows a method of direct election of judges which is a first degree democratic separation. This system allows for good accountability but might compromise the individual independence of the judge who might succumb to the pressures of the majority with an eye on his electorate.47 A second degree of democratic separation exists in Australia where the elected government, i.e.

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[1985] 2 S.C.R. 673 Alan Anderson, The Rule of Lawyers, Policy Magazine, Centre for Independent Studies, (December 12, 2005) available at: http://www.cis.org.au/images/stories/policymagazine/2005-summer/2005-21-4-alan-anderson.pdf (Last visited on January 21, 2014) 47 Alan Anderson, How Judicial Appointments Reform Threatens our Democracy, available at: http://samuelgriffith.org.au/docs/vol21/vol21chap12.pdf (Last visited on January 21, 2014). 46

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the executive appoints the judges. With a security of tenure and salary this system affords high degree of independence at the expense of some degree of accountability as it might not be seen to be completely non-politicised and impartial.48 A third degree of separation is seen in the UK model in which the JAC appoints judges and it has been kept away from political representation entirely.49 A modified version of this model is the South African Commission which is actually dominated by political members.50 The use of an independent commission in appointing judges is the most acceptable mechanism among the commentators in the contemporary world.51 The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region [Beijing Statement] 1995 states: In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Service Commission has been seen as a means of ensuring that those chosen as judges are appropriate for

the

purpose.

Commission

is

Where

a

Judicial

Service

adopted,

it

should

include

representatives of the higher judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.52

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Id. Id. 50 Id. 51 Shimon Shetreet, Who will Judge: Reflections on the Process and Standards of Judicial Selection 61 Australian Law Journal 766 at 768 (1987); see also Carl Baar, 'Comparative Perspectives on Judicial Selection Processes' in Appointing Judges: Philosophy, Politics and Practice 146, Ontario Law Commission (1991) 52 Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, adopted by the Chief Justices of the LAWASIA region and other judges from Asia and the Pacific in 1995 and adopted by the LAWASIA Council in 2001 49

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JUDICIAL APPOINTMENT COMMISSIONS IN OTHER COUNTRIES The commission system is operating in different countries including Canada, South Africa and in many jurisdictions of the United States.53 There are also judicial appointment committees in Ireland, Israel, New Zealand and the Netherlands.54 Such commissions and committees are entrusted with the task of either making the actual selection of the candidates, or making ‘recommendations only’, or providing ‘a shortlist outside of which’ appointments should not be made by the executive without justifying the reasons for doing so.55 The effectiveness of the commission system depends on the composition of the commission and the system used by it. The commission may be constituted by senior judges, senior lawyers and distinguished legal academics. Community representatives and parliamentary representatives may also be included.56 The process in South Africa centres on the constitutionally-established Judicial Services Commission, which includes five legal professionals, three judges, 11 politicians and four other politically selected persons.57 The majority political representation deems this composition inappropriate in securing the apparent independence and impartiality of the process in the eyes of the public.

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Akkas, Sarkar Ali, Appointment of Judges: A Key Issue of Judicial Independence, Bond Law Review Vol. 16: Issue 2, Article 8 (2002) 54 C Blair, Judicial Appointments (Criminal Justice Review Group, Belfast, 2000) 59 available at: http://www.ireland.com/newspapers/special/2000/justice/05.pdf (Last visited on January 21, 2014) 55 Michael Lavarch, Judicial Appointments - Procedure and Criteria (Discussion Paper, Attorney General's Department, Canberra, 1993) 56 Kate Malleson, The New Judiciary 133, Ashgate, Aldershot (1999); see also M Spry, Executive and High Court Appointments, (Research Paper, Parliamentary Library, Australia, 2000) available at : http://www.aph.gov.au/library/pubs/rp> (Last visited on January 21, 2014) 57 supra, note 50

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The model recently implemented in England and Wales under the Constitution Reform Act 2005 (UK) is most appropriate in terms of its composition as well as the functions specified in the Act. In April 2006, responsibility for identifying judges to be appointed was transferred from the Lord Chancellor, with the Commission for Judicial Appointments fulfilling an oversight role, to the Judicial Appointments Commission (‘JAC’).58 The JAC is composed of six lay persons, five judges, one solicitor, one barrister, one magistrate and one tribunal member.59Three of the judicial members are selected by the Judges’ Council; the Chair and the other 11 members of the Commission by a selection panel.60The Chair of the Commission must be a lay person61 and no Member of Parliament can be appointed to the Commission. The remit of the JAC is to make a recommendation to the Secretary of State for Constitutional Affairs as to who should hold judicial offices for courts below the Court of Appeal.62 The Constitutional Reform Act 2005 (UK) sets out clear principles on which the Commission’s recommendations must be premised. It explicitly states that selections be founded solely on merit and that the person selected be of good character.63 Additionally, the Act mandates that the Commission ‘have regard to the need to encourage diversity in the range of persons available for selection for appointments’.64 In order to help achieve diversity, the Lord Chancellor is permitted to issue guidance about selection procedures for identifying and assessing candidates.65 However, the Lord Chancellor must

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Simon Evans And John Williams, Appointing Australian Judges: A New Model, Sydney Law Review, Vol. 30 (2008). 59 Constitutional Reform Act 2005 (UK) c 4, sched 12. 60 supra, note 58 61 Constitutional Reform Act 2005 (UK) c 4, sched 12. 62 See generally the Judicial Appointments Commission’s website, (Last visited on January 21, 2014) 63 Constitutional Reform Act 2005 (UK) c 4, § 63(3) 64 Constitutional Reform Act 2005 (UK) c 4, § 64(1). 65 Constitutional Reform Act 2005 (UK) c 4, § 65(1).

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consult the Lord Chief Justice and that each House of Parliament must approve the proposed guidance prior to it being adopted by the Commission.66 Beyond these broad guiding principles, the Act leaves it to the Commission to determine the precise selection process to be undertaken.67 Since its inception the JAC has been working to formulate a selection procedure that accords with the principles articulated in the Act. To date, it has specified five core qualities and abilities generally required of a candidate for any judicial post68 as well as publishing guidance on what constitutes ‘good character’.69 It has also devised mechanisms to ‘encourage a wide range of applicants’ to apply and to minimise barriers individuals face to becoming part of the judiciary.70 Thus the JAC in UK secures independence of appointment procedure by two ways, firstly by non-politicisation the commission and by delegating the power to form criteria and guidelines for appointments to the Commission itself and not the Parliament.71 It is interesting to note that the Supreme Court of Pakistan in Al Jehad Trust v. Federation of Pakistan72 invalidated a portion of the Martial Law amendment which established Federal Shariat Courts. The invalidated portion provided for the method of appointment of judges in a manner which was in conflict with the principle of judicial independence. The Court struck down the said portion

66

Constitutional Reform Act 2005 (UK) c 4, § 66(1). See for example, Constitutional Reform Act 2005 (UK) c 4, § 70(2). 68 supra, note 58 69 Id. 70 Baroness Usha Prashar, ‘Speech at the Annual ILEX Luncheon’, Clothworkers’ Hall, London (17 May 2006) 71 Shimon Shetreet and Sophie Turenne, Judges on Trial The Independence and Accountability of the English Judiciary 102-179, Cambridge University Press (2013) 72 All Pakistan Law Decisions (1996) Supreme Court 367. 67

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on interpreting that the ‘basic feature’ of independence of judiciary will prevail over the amendment.73 The 18th Constitutional Amendment to the Constitution of Pakistan altered the appointment mechanism and constituted a judicial commission. The judicial members in the Commission did not constitute a majority and it was argued that the Commission was plagued by executive representation. Moreover, a Parliamentary Committee was to have powers to reject the recommendations of the Judicial Commission which gave the legislature complete indirect control over the process of appointments. The Pakistan Supreme Court in its order in 2010, citing separation of powers, asked the Pakistan Parliament to reconsider the 18th Amendment and did not strike it down on the ground of breach of judicial independence. Later, through the 19th Amendment, three changes were brought to give effect to the order of the Supreme Court. The judicial members were increased from two to four. Two, in case the Parliamentary Committee rejects any of the recommendations, it must provide reasons through the Prime Minister, and three, that the proceedings of the Parliamentary Committee shall be held in camera.74

4.

ARGUING THAT THE

121ST CONSTITUTIONAL

AMENDMENT BILL AND NJAC BILL VIOLATE BASIC STRUCTURE

Excessive Unfettered Delegation - Impingement of Indpependence of the Judiciary and Doctrine of Separation of Powers Violated The mathematics of the composition of the Panel is a matter of concern. The opinion of the members from the Judiciary in the Panel can be undermined by 73

Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine in Supreme, But Not Infallible: Essays in the Honour of the Supreme Court of India 107-134, Oxford University Press (2006). 74 Hussain Zaidi, New method of Judges’ Appointments,Dawn January 1, 2011.

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the rest, thus taking away the primacy of the Judiciary in the matter of appointments. The two ‘eminent’ persons shall be appointed by a collegium with an executive tilt. Therefore, the possibility of nomination of eminent members with a similar executive tilt cannot be ruled out. The opinion of the CJI in this secondary collegium that nominates eminent members can be outvoted by the two other political members. Moreover, the NJAC Bill further provides that no appointment can be made even if two members of the NJAC vote against the nomination. So, two non judicial members of the NJAC can effectively scuttle any appointment made by the NJAC. Interestingly, this particular provision is a part of the NJAC Bill and not the Amendment. Although, the NJAC Bill cannot be directly challenged on the grounds of violation of basic structure75, the very fact that the legitimacy of such law flows from the Amendment is sufficient to strike down the Amendment under the ‘width test’ as will be seen later. The rule of seniority in appointment of the CJI has been completely disregarded by the impugned Act. This violates the principle of ‘legitimate expectation’76 that the senior most judge has of being appointed as the CJI. This principle has been followed for a long time in India. Especially when the impugned Act does not provide for any standards while appointing a Judge, there can be extreme arbitrariness while appointing the CJI. Every senior Judge stands to face a direct threat to his being appointed as the CJI. Given that there is potential dominance of non-judiciary members in the Panel with a possible executive tilt, such a threat is likely to affect the functional independence of the Judges.

75

Indira Gandhi v. Raj Narain, AIR 1975 SC 865 Union of India v. Hindustan Development Corporation, AIR 1994 SC 998; Punjab Communications Ltd. v. Union of India , AIR 1999 SC 1801; Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 76

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As regards appointment of High Court judges the views of three constitutional functionaries of the State, namely, Governor, Chief Minister and Chief Justice of the concerned High Court would be solicited separately in writing. It implies that there will not be any consultation amongst the three constitutional functionaries of the State. This process could be time consuming and also limits the scope of consultation. The Amendment also says that the appointments made by the Panel shall not be invalidated on the ground of vacancy in the Panel. This clause is highly unjust. Given the uncomfortable mathematics of the composition even a single vote can make a difference in the outcome. The Amendment also does not specify the qualifications or the area of eminence of the two eminent persons on the Commission. With the composition itself undermining the judiciary, the Amendment further grants powers to the Commission to make regulations regarding criteria for appointment. With the judicial members in minority, irrelevant considerations might creep in undermining the need to focus solely on merit and legal acumen. APPLYING THE ‘WIDTH’ TEST AND ‘IDENTITY’ TEST TO THE AMENDMENT. The ‘Width Test’ and ‘Identity Test’ together constitute the touchstone of the doctrine of basic structure. The former is a test to ascertain the ‘width’ of effect any amendment might have on the Constitution, and obliquely on the principles which are at its core.77

77

Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine 127, Oxford University Press (2009)

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In M. Nagaraj v. Union of India78, the Hon’ble SC expounded on the same and said that the ‘Width Test’ would contemplate all probable ramifications of the amendment to see if the ‘basic structure’ of the Constitution is at threat, under any construction, through the amendment. The ‘Width Test’ is not as much a test as it is a guidance under which the courts would have to consider the widest ramifications of an amendment while judging its validity. When the width of the amendment is not in consonance with the ‘basic structure’ of the Constitution then the amendment would be struck down. Even a distant possibility of breach through a liberal construction would suffice to strike it down.79

The Act, deriving constitutional sanction from the impugned Amendment, gives immense power to the Parliament to alter the procedure of the Commission. The fact that the criteria of appointment and the procedure to be adopted are not a part of the Constitution gives rise to a certain amount of tension between the Judiciary and the Executive. The Judiciary can come under constant pressure by thinking that any decision offending the Executive could lead to a further diminution of their independence.

As regards, the identity test which mandates that no amendment to the Constitution shall affect the constitutional identity, it must be noted that the 121st Constitution Amendment is the first amendment in the history of India which actually creates a body that is statutorily regulated wherein the statute in turn delegates essential legislative functions to that body without any clear policy guidelines whatsoever. The impugned Amendment compromises the

78

AIR 2007 SC 71 M Nagaraj & Ors v. Union of India, AIR 2007 SC 71 ; Satya Prateek, Today’s promise, tomorrow’s Constitution: ‘Basic structure’, constitutional transformations and the future of political progress in India (2008) 1(3) NUJS Law Review 417. 79

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sanctity of the appointments process and provides for a Commission which is prone to easy statutory amendment, even abrogation possibly, and thus uncertain. The impugned Amendment, thus, changes the very identity of the power of appointment thereby damaging the basic feature of independence of Judiciary.

OVER-ARCHING PRINCIPLES OF RIGHT TO AN INDEPENDENT AND IMPARTIAL JUDICIARY THREATENED

Distinguishing between various kinds of constitutional amendments and remarking on a situation where an amendment makes changes in the main provisions of the Constitution, the Hon’ble Supreme Court of India in Indian Medical Association v. Union of India observed as under; “This is in contrast to the situation where a Constitutional amendment effectuates changes in the main provisions of the Constitution, particularly in Part III. In such a constitutional amendment, the "essences of rights" test used in M. Nagaraj80, wherein the essences of the rights are identified across entire equality, freedom and judicial review codes, i.e., "over-arching principles" of such codes, and then the particular Constitutional amendment is evaluated as to whether it completely changes the very "identity" of the entire Constitution itself. Those "over-arching principles" are what gives the Constitution its identity, and when they are destroyed would the identity of the Constitution have been changed completely.”81

80 81

Id. Indian Medical Association v. Union of India, AIR 2011 SC 2365

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In this context, it is pertinent to note the observations of the Hon’ble Supreme Court of India in S.R. Bommai v. Union of India82, wherein it was stated that basic structure is beyond the words of particular provision and constitutes systematic principles underlying and connecting the provisions of the Constitution. This view is reiterated and further clarified in Glanrock Estate Pvt. Ltd. v. State of Tamil Nadu, where the Hon’ble Court went on to observe; “What is over-arching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted it would require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution.”83

It is submitted that independence of Judiciary, one such concept, should not be looked at in isolation. The various constitutional provisions ensuring judicial independence like security of tenure, fixed salary, and appointment process must be read with Art.32 and Art.226 which give the ordinary citizen the right to seek judicial review of state action.

The powers of the Higher Judiciary exercised under Art 32 and Art 226 have led to tremendous judicial activism and brought justice to the society. Also, Art.50 mandates the consistent strife for separation of the Judiciary from the Executive. Thus, by connecting all these provisions it can be said that the over arching principle that the Constitution promotes is that every individual is

82 83

AIR 1994 SC 1918 Glanrock Estate Pvt. Ltd. v. The State of Tamil Nadu, (2010) 10 SCC 96

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entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, which is in consonance the international norms of judicial independence.84

An integral part of independence is the appearance of independence and impartiality. The European Court of Human Rights has ruled that as per Art 6 (1) of European Convention of Human Rights, the objective test in determining independence “even appearances may be of a certain importance”, because “what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings.”85

It must be noted that in recent times, the Supreme Court of India has functioned with tremendous independence which has been one of the primary reasons for the consistent high ranking that India holds in the international rule of law index.86 It has recognized the changing nature of judicial function considering the existing political circumstances. From monitoring the telecom spectrum allocation scam and investigations ordered into Swiss bank accounts to exercising its powers in the vast arena of protecting environment and directing implementation of mid day meal programmes in schools, the Court has undertaken spectacular tasks.87 The Hon’ble Chief Justice of India once opined;

84

International Covenant on Civil and Political Rights, New York 16 December 1966, entry into force 23 March 1976, 999 U.N.T.S. 171 85 Daktaras v. Lithuania App No 42095/98 (ECHR,10 October 2000) 86 World Justice Project, ‘WJP Rule of Law Index 2012-2013 ’(2013), available at: http://worldjusticeproject.org/sites/default/files/WJP_Index_Report_2012.pdf (Last visited on January 24, 2014) 87 Santosh Paul, The Eternal Debate on Judicial Appointments in Santosh Paul (ed.),Choosing Hammurabi: Debates on Judicial Appointments (2013)

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“An independent judiciary is important for preserving the rule of law and is, therefore, most important facet of good governance. The judicial system has an important role to play ultimately in ensuring better public governance.”88

Therefore, the basic structure doctrine has led the SC to become a source of good governance in the country89 and hence it is necessary to guard the Constitution and protect independence of judiciary which is an essential feature of rule of law.90

It is ironic that the Executive, considering the existing political circumstances, which is sullied in corruption and lack of public confidence, is enormously empowered play a vital role in appointment of Judges. It will demolish the appearance of independence of Judiciary and resulting in loss of public confidence in that one institution which still commands some of it- the Judiciary. Hence, it is necessary that the Constitution be interpreted by taking into consideration the existing state of the nation.

At this juncture, the observations of Justice Kuldip Singh in the Supreme Court Advocates on Record Association are noteworthy; “The case before us must be considered in the light of our entire experience and not merely in that of what was said by the Framers of the Constitution…..The Constitution has not only to be read in the light of contemporary circumstances and values; it has to be read in such a way

88

Y.K.Sabharwal, ‘Role of Judiciary in Good Governance’ available at: http://supremecourtofindia.nic.in/speeches/speeches_2006/good%20governance.pdf (Last visited on January 21, 2014) 89 Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court 8 Wash. U. Global Stud. L. Rev. 1 (2009) 90 Durga Das Basu, Commentary on the Constitution of India Vol.5 5539, Lexis Nexis Butterworths Wadhwa (CK Thakker J. et al eds., 2009).

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that the circumstances and values of the present generation are given expression in its provisions.”91 Thus, to preserve the overarching principle of an individual’s right to an impartial and independent judiciary, the appointments process must be devoid of too much of Executive influence. The process of consultation with the Executive does not erode the judicial independence but the fact that the primacy is taken away from the Judiciary does.

Justice Verma, remarking on the need for reconsideration of his earlier judgment that validated the role of the executive in judicial appointments stated as under; “My judgement says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it…..In the area of legal acumen the judiciary’s opinion should be dominant and in the area of antecedents the executive’s opinion should be dominant. Together, the two should function to find out the most suitable (candidates) available for appointment.”

92

Furthermore, in yet another cogent analysis, Justice Verma expressed concerns of the non-exercise of power and the inaction of the Executive in the following words;

91

Supreme Court Advocates on Record Association & Anr. v. Union of India AIR 1993 SC 268 92 supra, note 37

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“It must be stated that as per decision in Supreme Court Advocates on Record Association the power of non-appointment on the grounds of personal character and antecedents was expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non appointment. This also holds when the recommendation of the collegiums is not unanimous. However the Executive has failed to perform its duty by exercise of this power.”93 SCOPE OF ‘INDEPENDENCE’ OF JUDICIARY RE-EXAMINED Finally it is pertinent to trace the perception of the term ‘Independence’ in the context of the judiciary to evaluate whether the impugned Amendment impinges upon the same. The jurisprudence on the same as established by landmark judicial precedents clearly establishes the true meaning and importation of judicial independence. In Union of India v. R. Gandhi the Hon’ble Court held as under; “Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary. If `Impartiality' is the soul of Judiciary, `Independence' is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values..Its existence depends however not only on philosophical, ethical or moral aspects but also upon several 93

Justice JS Verma, Judicial Independence: Is it threatened? in Santosh Paul (ed.) Choosing Hammurabi: Debates on Judicial Appointments 158-170, Lexis Nexis (2013).

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mundane things - security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the Executive).”94 In Supreme Court Advocates on Record Association – a landmark case on the point, The Hon’ble SC unequivocally held as under; “What is needed is to prevent executive minded persons to get in as Judges. The judiciary need to be saved from men of a pre-dominant executive temperament, men who brew conflict, men who relish and thrive on confrontation, men who would compromise principles to gain their point, men who are not historians of the past and prophets of the future, but believe in short term existences.”95 In Union of India v. S. H. Sheth, the Hon’ble Court observed; “Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive; and ‘without favour’ that is without expecting a favour from the executive.”96 Conclusively evaluating the dire consequences of executive interference in judicial appointments, Justice Kuldip Singh unequivocally stated the correct position of the law in the Supreme Court Advocates on Record Association in the following words;

94

Union Of India v. R. Gandhi ,President, Madras Bar Association, (2010) 11 SCC 1 Supreme Court Advocates on Record Association & Anr. v. Union of India, AIR 1993 SC 268 96 Union of India (UOI) v. Sankalchand Himatlal Sheth and Anr. AIR 1977 SC 2328 95

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“Then the question which comes-up for consideration is, can there be an independent Judiciary when the power of appointment of Judges vests in the Executive? To say yes, would be illogical. The independence of Judiciary is inextricable linked and connected with the constitutional process of appointment of Judges of the higher Judiciary. 'Independence of Judiciary' is the basic feature of our Constitution.”97

Thus, the impugned Amendment clearly impinges upon the independence of the judiciary and facilitates violation of the doctrine of separation of powers, both of which are deeply entrenched in our constitutional schema. The impugned Amendment is therefore invalid as it violates the basic structure of the Constitution.

5. ARGUING IN DEFENSE OF THE BILL The width test ascertains the ‘width’ of effect any amendment might have on the Constitution, and obliquely on the principles which are at its core to in turn decide the legitimate scope of the amending powers.98 In accordance with the test, the widest possible ramifications of the impugned Amendment must be taken into consideration. The mere probability of misuse of non-specification of area of eminence of the nominated ‘eminent members’ of the Panel has been deemed to potentially impinge upon the independence of the judiciary in spite of a constitutionallydiverse collegium consisting of the PM, CJI and the Leader of Opposition

97

Supreme Court Advocates on Record Association & Anr. v. Union of India , AIR 1993 SC 268 98 supra, note 79

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(House of the People) entrusted with the responsibility of nomination.

It is

our humble submission that this imaginary wide apprehension of remote ramifications is not well-based in law. The Act derives constitutional sanction from the impugned Amendment and hence cannot be modified to alter the sacrosanct foundations and primary objectives of the empowering constitutional amendment. Furthermore, judicial review of legislative acts is a deeply entrenched principle in the constitutional schema. Tests of constitutional

validity

of

constitutional

limitations

legislations etc.

viz.

sufficiently

legislative safeguard

competence, against

these

apprehensions. In accordance with the doctrine of ripeness of review, imaginary ramifications of a law cannot be valid grounds of invalidation.99 The identity test was envisaged by the Hon’ble Court in Indian Medical Association case in the following words, “The prevention of destruction of the “constitutional identity” is the chief rationale in using the basic structure doctrine in instances of constitutional amendment.”100

The identity test says that there are some features of the Constitution which if changed, would alter the very identity of the Constitution. However, these principles are not contained in individual articles of the Constitution but are the ‘overarching principles’ which connect various articles. As discussed above, the intent of the framers of the Constitution as reflected by the constituent assembly debates indicate the true constitutional identity of judicial independence which is in favour of broad-based systems of judicial appointments with requisite checks and balances on the relevant constitutional authorities involved and reasonable transparency/accountability in the process.

99

Dr. C. D. Jha’s Judicial Review of Legislative Acts, Lexis Nexis Butterworths Wadhwa (Justice C. K. Thakker, Justice Arijit Pasayat eds., 2009) 100 Indian Medical Association v. Union Of India & Ors., AIR 2011 SC 2365

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The Commission established under the impugned Amendment clearly fulfils these requisites of the test. In fact, the impugned Act also broadens judicial control over the Commission by way of broadening the scope of judicial review in the functioning of the Commission. The word ‘recommendation’ connotes that the decision of the Commission, a statutory duty, must be arrived at after placing all the relevant documents and information involved in making an informed decision. Thus, the courts have the power to ascertain the legality of the process of recommendation.101 This has enhanced the scope of judicial review which was limited by the Court in Second and Third Judges cases only to ‘want of consultation’ in the collegium and the minimum eligibility for appointment. It is also pertinent to note that the impugned Amendment effectively makes the Judicial Appointments Commission a constitutional authority that is statutorily regulated under the said Act. By doing so, the Panel clearly falls within the purview of the term ‘public authority’ 102 as envisaged under the Right to Information Act 2005, thus ensuring greater transparency and accountability of the procedures and functions of the Panel which advances the interests of judicial independence and accountability. NO OVERARCHING PRINCIPLE HAS BEEN VIOLATED AND THAT THE AMENDMENT AND THE NJAC BILL STRENGTHEN THE CHECKS AND BALANCES WITHIN THE CONSTITUTIONAL FRAMEWORK. In Glanrock Estate (P) Ltd. v. The State of Tamil Nadu103, Justice Kapadia interpreted Coelho. He opined that the ‘time had to come to explain certain concepts that had been applied by the court in Coelho, like ‘over-arching principles’, ‘egalitarian equality’ and thus the essence test. He also opined that

101

Centre for Public Interest Litigation v. Union of India , AIR 2011 SC 1267 The Right to Information Act, 2005, § 2(h). 103 (2010) 10 SCC 96 102

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if one finds that the constitutional amendment seeks to abrogate core values/ overarching principles like secularism, egalitarian equality, etc. and which would warrant re-writing of the Constitution then such constitutional law would certainly violate the basic structure. By restricting the application only to the violation of the overarching principles like democracy, federalism et al, instead of extending it to the ‘rights’ cases, there is certainly a higher threshold to be met for the court to strike down a legislation as unconstitutional. In KT Plantation104, the court held that, “any law which, in the opinion of the Court, is not just, fair and reasonable, is not a ground to strike down a Statute because such an approach would always be subjective, not the will of the people, because there is always a presumption of constitutionality for a statute” Thus, the court held that rule of law was “not an absolute means of achieving the equality, human rights, justice, freedom and even democracy and it all depends upon the nature of the legislation and the seriousness of the violation. Rule of law as an overarching principle can be applied by the constitutional courts, in rarest of rare cases, in situations, we have referred to earlier and can undo laws which are tyrannical, violate the basic structure of our Constitution, and our cherished norms of law and justice.”

Post-Coelho, this is yet another example of the narrow application of the basic structure doctrine. The rule of law had always been a part of the basic structure doctrine, an overarching principle which ran through all the fundamental rights, such that a legislation could be struck down just by 104

KT Plantation v. State of Karnataka, 2011 (8) SCALE 583

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invoking the rule of law principle. But, by calling it as the ‘rarest of the rare’ case when the principle would be applied , and that rule of law was not just the only means of achieving other principles, the court clearly drew the line of the application of basic structure doctrine in a conservative manner. In Indian Medical Association, the court was of the opinion that “evaluation of whether a particular amendment has amended those “over-arching principles” is the test for basic structure. It was not the specific instances of expression of contents of a fundamental right, as stated by the courts prior to an amendment which are to become the anvil of the test of basic structure when the amending power is exercised and a main element of the provisions of the Constitution is altered. Rather, the courts have to be careful in assessing whether those overarching principles themselves are abrogated.105 The test of ‘over arching principles’ prevents the problem of identification of basic features at different levels of abstraction. For example, is ‘democracy’106 itself a basic feature or ‘parliamentary democracy’107; both of which have been identified to be basic features.108 Similarly, in Indira Gandhi, the Supreme Court identified both ‘democracy’ and ‘free and fair elections’ to be part of basic structure. So, supposing a constitutional amendment seeks to shift Indian polity from parliamentary democracy to presidential democracy, surely it will be struck down as parliamentary democracy, which is sub-set of democracy is also held to be a basic feature.

105

Jasdeep Randhawa, Understanding Judicialization Of Mega-Politics: The Basic Structure Doctrine And Minimum Core, Jus Politicum: Journal of Constitutional Law and Politics (2008) available at: http://www.juspoliticum.com/Understanding-JudicializationOf,411.html?artpage=6-8 (Last visited on September 13, 2014) 106

Kihoto Hollohan v. Zachillu, AIR 1993 SC 412. P.V. Narasimha Rao v. State, AIR 1998 SC 2120. 108 Sudhir Krishnaswamy , Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine 142, Oxford University Press (2009) 107

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The ‘over arching principles’ test seeks to identify basic features at a higher level of abstraction and limits them to broad principles like independence of judiciary rather than narrow it down to individual components of that general principle. Thus, a mere change in the process of appointments does not abrogate the overarching principle of independence of judiciary which is guaranteed by other provisions like that of security of tenure, judicial review. Moreover, by introducing the principle of checks and balances in the appointment mechanism, there is a positive enactment. And as held in Indian Medical Association even if an essential feature of the constitution that was previously declared by the court had been violated by the enactment of an amendment, the amendment would not be struck down as unconstitutional if there was a positive enactment by such an abrogation.

6. CONCLUSION In India, the rhetorical understanding of judicial independence led to the belief that an appointment process totally isolated from the executive and solely controlled by the judiciary guaranteed judicial independence. This understanding failed to recognize the importance of actual process of appointment and rather focussed solely on the appointing authority as a safeguard to judicial independence. No matter what the process of appointment is, eventually the individual integrity of the judge will ensure impartiality and independence of the institution. Since it is impossible to be ascertained of the integrity of every judge at the stage of appointment, it is imperative that an oversight mechanism be put in place because the functional independence of the judge actually begins after appointment. Laws on judicial standards while performing judicial functions and also precluding judges from accepting post-retirement jobs must be seriously considered. Similar attempts were made by introducing the Judicial Standards and Accountability Bill, Page | 34

2010 which has lapsed now. As regards 121st Constitutional Amendment Bill and the NJAC Bill, it is difficult to predict the response of the Supreme Court. Although the very idea of an appointments commission ipso facto is not in violation of basic structure, the bills in their present form might be prone to constitutional invalidation. The inter-institutional equilibrium and a system of checks and balances which was envisaged by the Constitution makers can be best achieved through a commission to decide appointments. The multiplicity of appointing authorities is one of the strands to ensure relative judicial independence and any process of appointment must also focus on the process by which such authorities interact. And a diverse commission bringing all the stakeholders on one table will ensure greater accountability and transparency provided there is proper and balanced representation of multiple stakeholders.

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