Supreme Court Advocates-on-Record Association v Union of India (2015) — the NJAC case

It is the only occasion on which the Supreme Court has struck down a constitutional amendment dealing with the appointment of judges, and it is the leading modern application of the basic structure doctrine. It also has the rare consequence that, on the amendment falling, the pre-existing Articles revived and the collegium built by the Second and Third Judges cases came back into operation.

Judges of the Supreme Court and the High Courts are appointed under Arts. 124 and 217; additional and acting Judges of High Courts under Arts. 224 and 224A; transfers of High Court Judges and Chief Justices under Art. 222.

A view came to be entertained that a Commission for selection, appointment and transfer of Judges of the higher judiciary should replace the prevailing procedure, and that the Commission should be broad based — comprising members of the judiciary, the executive and eminent or important persons from public life — so as to introduce transparency into the selection process.

To achieve that, Arts. 124 and 217 were amended and Arts. 124A, 124B and 124C were inserted by the Constitution (Ninety-ninth Amendment) Act 2014, following the procedure in Art. 368(2) including the proviso. The Bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, was ratified by sixteen State Legislatures, and received the President's assent on 31 December 2014. It was brought into force on 13 April 2015, along with the NJAC Act 2014.

Art. 124A(1) constituted the NJAC of six members:

(a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of the Supreme Court next to the Chief Justice, Members, ex officio; (c) the Union Minister in charge of Law and Justice, Member, ex officio; (d) two eminent persons, nominated by a committee of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the People (or the leader of the single largest Opposition party), one of them from among persons belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women, nominated for three years and not eligible for renomination.

Art. 124B gave the Commission the duty to recommend appointments as Chief Justice of India, Judges of the Supreme Court, Chief Justices and Judges of the High Courts, to recommend transfers, and to ensure that the person recommended is of ability and integrity. Art. 124C empowered Parliament to regulate the procedure by law and to empower the Commission to make regulations.

Under the statutory procedure the Central Government was to make a reference six months before a vacancy arising on completion of a term; the senior-most Judge of the Supreme Court was to be recommended as Chief Justice of India; a person fit on the basis of ability, merit and suitability was to be recommended to the Supreme Court; a High Court Judge was to be recommended as Chief Justice after considering inter se seniority, ability, merit and suitability; names for a High Court were to be sent to the Chief Justice of that High Court for his views, the Governor and the Chief Justice first consulting two senior-most Judges of the High Court; and the Commission was to seek in writing the views of the Governor and the Chief Minister of the State. Critically, if two members were not in favour of a person, his name was not to be recommended — the second proviso to s. 5(2) and s. 6(6) of the NJAC Act.

Clauses (a) and (b) — the judicial component

The Chief Justice and two Judges give the judiciary three of six. The Court held that clauses (a) and (b) do not provide adequate representation to the judicial component and are insufficient to preserve the primacy of the judiciary in the selection, appointment and transfer of Judges. They are therefore violative of the principle of independence of the judiciary.

Clause (c) — the Law Minister

The inclusion of the Union Minister in charge of Law and Justice as an ex officio Member was held ultra vires because it impinges on the principles of independence of the judiciary and of separation of powers. The Government is the largest single litigant before the courts; its Minister sitting in the selecting body is the objection in a sentence.

Clause (d) — the two eminent persons

This is where the reasoning is fullest.

No qualifications. Art. 124A(1)(d) laid down no qualifications of eligibility for nomination as an eminent person and left the matter vague and undefined, so that nomination would depend on the will and choice of the nominating authorities irrespective of the high constitutional positions they hold. The clause was struck down on that ground.

No intelligible function. The Attorney-General had said eminent persons were included to infuse inputs not hitherto available, and that they would be lay persons with no connection with the judiciary or the profession of advocacy, perhaps without any law-related academic qualification. The Court found it difficult to see what inputs such persons would render. It tested the idea by analogy: imagine lay persons participating in the selection of the Comptroller and Auditor-General, the Chairman and Members of the Finance Commission, the Chairman and Members of the Union Public Service Commission, and the Chief Election Commissioner and Election Commissioners — the position would be disastrous. It added that it is imprudent to ape a system prevalent in an advanced country with an evolved civil society.

The veto. The two eminent persons formed one-third of the strength of the NJAC and double the political-executive component, and the statutory rule that a name fails if any two members do not agree meant that the two eminent persons were sufficiently empowered to reject all recommendations by themselves and had absolute authority to reject names unanimously approved by the remaining four Members.

What could have been done instead. The Court indicated the permissible design: one or more eminent persons, perhaps a committee of them, could be given an advisory or consultative role, expressing opinions on nominees, perhaps under the judicial component of the process — comprising eminent lawyers, eminent jurists and even retired Judges with an insight into the working of the judicial system, and free of conflict of interest — with the final selecting body not bound by the opinion but obliged to keep it in mind.

The spoils system

The broader ground on which the Court refused to share the wisdom of judicial appointment with the political executive is stated in terms. The Constitution does not envisage the spoils system, also known as the patronage system, in which the party that wins an election gives Government positions to supporters, friends and relatives as a reward and as an incentive. The Court pointed to the pattern of resignations from high positions in institutions of significance following a change of Government, describing this not by way of vilification but as an appreciation of the ground reality, and asked whether those who hold the reins of Government introduce their favourites. For the judiciary, the best out of those available have to be chosen, and considerations cannot be varied with a change in Government. Shielding judicial appointments from political-executive interference preserves the independence of the judiciary from the spoils system, and preserving the primacy of the judiciary is a safe way to do so.

Civil society

The Court asked whether civil society in India is strong enough to be a deterrent against overreach by any pillar of governance, and concluded that at present it is not sufficiently motivated or determined to act as a directional deterrent to the political-executive establishment. The higher judiciary, as the protector of fundamental rights under Arts. 32 and 226, must therefore continue to act as the protector of civil society, preserving the rule of law by forestalling the political executive from transgressing the limits of its authority.

Section 8 and administrative control

The provision making the Secretary to the Government of India in the Department of Justice the convener of the NJAC was held not sustainable: in a body like the NJAC, administrative functioning cannot be under executive or legislative control, and the only remaining alternative is to vest administrative control in the judiciary. Section 8 of the NJAC Act was therefore unsustainable.

Article 124A is the edifice of the Ninety-ninth Amendment. Striking it down automatically undoes the amendments to Arts. 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231, since those are sustainable only if Art. 124A is upheld. If the inclusion of any one member of the NJAC is unconstitutional, Art. 124A is rendered nugatory in its entirety.

All four clauses (a) to (d) of Art. 124A(1) were struck down, and with them the entire Constitution (Ninety-ninth Amendment) Act 2014, as ultra vires the provisions of the Constitution.

The NJAC Act 2014 emanates from Art. 124C and has no independent existence in the absence of a Commission constituted under Art. 124A(1); with Arts. 124A and 124C set aside, the Act was struck down as a natural corollary. It was therefore unnecessary to examine each of its provisions, though the Court did examine ss. 5, 6, 7 and 8 and concluded that ss. 5, 6 and 8 are ultra vires.

Revival. The respondents had argued that the pre-amendment provisions would not revive even if the amendment fell. The Court rejected this: on the setting aside of the Ninety-ninth Amendment, the provisions sought to be amended revive automatically and the status quo ante stands restored. Articles 124, 127, 128, 217, 222, 224, 224A and 231 as they stood before the amendment therefore came back, and with them the Second and Third Judges cases as the regulators of selection, appointment and transfer.

The primacy of the judiciary in the appointment and transfer of Judges of the higher judiciary is an aspect of the independence of the judiciary, which is part of the basic structure; a constitutional amendment which dilutes that primacy — by giving the judiciary only half the seats, by including the Law Minister, and by giving two undefined eminent persons a veto — destroys the basic structure and is void.

• Take the clauses one at a time. (a) and (b) inadequate representation; (c) independence and separation of powers; (d) no qualifications, no intelligible function, and a veto. The Court's own structure is the best answer structure.
• State the automatic revival. It is the point most often missed, and it explains why the collegium operates today.
• Use it as the modern basic-structure case. It shows the doctrine applied to a machinery provision rather than to rights, and it identifies independence of the judiciary as the feature destroyed.
• Be balanced in an essay. The judgment is not beyond criticism: it declines to share appointments with the executive partly on an assessment of the present state of Indian civil society, which is a judgment about facts, not text — and the Court itself suggested that a consultative role for eminent persons would have been permissible.