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Petitioner
v.
Union of India
... Respondent
PART III
Contents
III.
The presence of the Union Minister for Law and Justice on the NJAC does
not affect the independence of the judiciary ...................................... 26
a.
The Law Minister provides information about candidates that is available
only to the Executive
..................................................................................................
26
b.
The Executive is a key stakeholder in the justice delivery system for which
it is accountable to Parliament
.................................................................................
29
c.
The Law Minister ensures checks and balances in the process of appointing
judges
.............................................................................................................................
31
d.
The presence of one member of the executive in a commission of six
members does not affect judicial independence
...................................................
32
e.
The arguments of the petitioners on the noxious presence of the Law
Minister are based entirely on presumptions and supposition
.............................
35
IV.
The setting up of the NJAC has two key advantages, viz., transparency
and accountability in the matter of appointments ................................ 38
a.
Transparency and accountability in the matter of appointment of judges
are essential for the public to repose their confidence in the judiciary
...........
38
b. The setting up of the NJAC for the purpose of appointment of judges has the
advantage of bringing in transparency and accountability in the appointments
process thereby fulfilling the constitutional mandate of the citizens right to
know
...............................................................................................................................
41
V.
Section 3 of the 99th Amendment inserting Article 124A(2) does not
abrogate the basic structure of the Constitution .................................. 46
a.
Independence of the judiciary does not mean independence from
Parliamentary law
........................................................................................................
50
b.
Parliament has powers to enact laws governing various aspects relating to
the functioning of judiciary
.......................................................................................
53
c.
The Parliament has the authority to enact laws laying down the suitability
criteria pertaining to the appointment and selection of judges of the Supreme
Court and High Courts
.................................................................................................
56
G.
SUMMARY OF SUBMISSIONS ........................................................... 61
Annexure VII: Extracted Provisions of UK Law..................................................62
Annexure VI: Comparative Chart on Judicial Appointments...................................79
Annexure VIII: List of Acts with Similar Provisions to Article 124A(2) inserted by the 99th
Amendment.....................................................................................94
of
the
Constitution.
Further,
it
has
also
been
one other member who does not represent the executive i.e. one
eminent person. Thus, seen from this perspective, NJAC tilts the
balance further in favour of the judges and represents a diluted
role for the executive. Thus unless majority of the judges on the
NJAC are in favour of a particular candidate, the appointment of
the candidate will not go through. In light of this, it is respectfully
submitted that judges continue to enjoy considerable preeminence
under the NJAC.
II.
The presence of two eminent persons on the NJAC does not affect
the independence of the judiciary; on the contrary it is necessary to
ensure diversity and accountability in appointments
11. It has been contended by the petitioners that the term eminent
persons as contained in sub-clause (d) of clause (1) of Article 124A
introduced by the 99th Amendment is vague and without criteria, and
therefore the requirement to have two eminent persons on the NJAC
should be struck down.
a. The infirmity with the term eminent persons as contended by
the petitioners must be of such a nature as to amount to
emasculating the independence of the judiciary thereby
abrogating the basic structure of the Constitution
12. It is respectfully submitted that merely stating that the power to select
eminent
persons
is
vague
does
not
render
the
provision
13. The burden to demonstrate this infirmity is on the petitioners, till which
time the provision enjoys a presumption of constitutionality.
10
as
11
Court
See, S. 64F, Insurance Act 1938, S. 24, Indian Institutes of Information Technology Act, 2014, S. 12,
Rajiv Gandhi National Institute of Youth Development Act, 2012, S. 5 (2)(c)(iii), 6(2)(c)(4) Unorganised
Workers Social Security Act, 2008, S. 22(1) Biological Diversity Act, 2002, Schedule 1, Para 22,
Jamia Millia Islamia Act, 1988, S. 4 National Institute of
12
appointment
the
committee
to judicial
office. Especially
value
to the
process
of
Pharmaceutical Education and Research Act, 1998, Schedule 1 of Pondicherry University Act,
1985, S. 4 Jallianwala Bagh Act, 1951.
13
of
Objects
and
Reasons,
envisages
broad-based
14
23. A key element in securing such confidence is the need for diversity in
judicial composition. The importance of diversity was underscored in
the context of judicial appointments in India in Registrar General, High
Court of Madras v. R. Gandhi and Ors. (2014) 11 SCC 547 by Chauhan
J. (at p. 554):
16. Appointments cannot be exclusively made from any isolated
group nor should it be pre-dominated by representing a narrow
group. Diversity therefore in judicial appointments to pick up
the best legally trained minds coupled with a qualitative
personality, are the guiding factors that deserve to be observed
uninfluenced by mere considerations of individual opinions. It is
for this reason that collective consultative process as enunciated
in the aforesaid decisions has been held to be an inbuilt
mechanism against any arbitrariness.
2
Ibid.
16
17
27. Having eminent persons, not connected with the legal profession on the
panel to select judges promotes diversity both intrinsically and
instrumentally. Intrinsically, by very virtue of the fact that they are not
judges or the government officials, they are in a position of
detachment. Lord Brian Gill, Lord President and Lord Justice General
(Scotlands longest serving and senior most Judge) remarks in his recent
speech on Independence of the Judiciary at the 19th Commonwealth Law
Conference, 2015:
Inevitably a process that is administered by the public service
will adopt a typically public service appointment model. That
may not be the best model for appointments to an office of
constitutional significance. We must ensure that the
appointments boards include people of significant legal
experience, as well as lay membership that will provide a check
on the process from a detached standpoint. Lay members from a
variety of backgrounds possessing different life experiences can
evaluate non-legal competencies from the ordinary citizens
perspective. Temperament and commitment are attributes that
require no legal skill for their assessment.
woman or
representative of
18
application
of
19
disputes.
(See:
Professor
Robin
C.A.
White: The
29. The Supreme Court was fully conscious of the fact that the President
of the National Commission may be outvoted by other members being
lay persons who might not have expertise in that specific area. Yet it
upheld the appointment of these lay persons/non judges. (para 33,
20
21
31. Such representation to members of the public who are the primary
consumers of justice and in whose interests the Court functions is
particularly crucial in India. This is because the higher judiciary in India
exercises the power of judicial review in a manner largely unparalleled
in the world. From the traditional role of an adjudicator of disputes
whether between private parties/ governments/ municipalities etc., the
Courts have expanded their jurisdiction significantly. The start was the
entertainment of PILs in the 1980s. Bhagwati J. (as he then was) the
pioneer in this regard. Over the last three decades, PILs have been
entertained for and on behalf of weaker sections of society like bonded
labour, child labour, under trial prisoners, etc. Further, PILs in respect
of various technical matters with significant economic implications such
as aspects of environment and forests, mining, coal and telecom
industries, technology, (issues of economy) linking and cleaning of
rivers, the construction and height of dams, hydroelectric projects,
aspects of pollution in cities, etc. have also been entertained. This is
not to criticise the role of the Courts but to show the sweep and the
myriad nature of their adjudicatory functions. It is but obvious that a
judge is not an expert in every field described above. However, it is
important for a judge to be a well-rounded personality with expertise in
some of these subject areas, awareness of contemporary events and
sensitivity to the social and economic impact of issues that arise before
the court. Thus only knowing the letter of law in the current
22
32. It is humbly submitted that the qualities of a judge should also be wideranging was recognised in the Indian context by former Chief Justice of
India, Justice RC Lahoti. He identified the following ethical values which
a judge should have:
i.
ii.
iii.
23
v.
vi.
vii.
It is of some significance that in the UK, even in the designation of Queens Counsels (QCs),
lay persons are on the selection panel. The selection panel comprises of a senior judge, senior
lawyers (both barristers and solicitors and distinguished lay (not legally qualified) people. In
fact, two panel members including one lay person is required to review each application based
on the list of important cases, narrative description of practice and self assessment to
establish a preliminary view. Only then is the application put before the panel. This process
too encourages social diversity.
25
26
34. The presence of eminent persons on the NJAC is justified by the fact that
attributes appropriate for judgeship are not confined to competence in the
law. It must be fairly admitted that Knowledge of the law, record as a judge
are certainly crucial factors in appointment. The Chief Justice of India and
two seniormost puisne judges will naturally have a determinative say in this
matter. The eminent persons would help in ensuring that perspectives of
the citizenry, who are the ultimate consumers of justice, are also
adequately taken into account especially with regard to the other qualities
Justice Lahoti believes are necessary. Lord Gill, Lord President and Lord
Justice General of Scotland (Scotlands longest serving and senior most
Judge) remarked in his recent speech at the 19th Commonwealth Law
Conference, 2015:
Lay members from a variety of backgrounds possessing different life
experiences can evaluate non-legal competencies from the ordinary
citizens perspective. Temperament and commitment are attributes
that require no legal skill for their assessment.
In 48 years in the business of the law I have known judges of
outstanding academic brilliance who found it difficult to make a
decision for fear of being wrong; or who pursued relentless logic
without due regard to common sense. I have known lawyers who
were not forceful pleaders at the Bar yet flourished in the judicial
life when they had time for reflection. So when a judicial
appointment is made and the profession as always - passes its
confident verdict, remember this: you never can tell.
35. It is humbly submitted that eminent persons who would be part of the
NJAC would help to bring such qualities to the table which would be in
addition to a judges role as an adjudicator of disputes. The
A
35C. In light of the above, it is humbly submitted that eminent persons are
essential in assessing the relevant qualities in persons who are to be appointed
as judges, qualities which cannot simply be limited to the knowledge of the
law.
iii. The inclusion of eminent persons without any stated criteria was
found sufficient by several previous reform proposals including the
National Commission to Review the Working of the Constitution.
35D. It must be noted that the concept of having eminent persons on the
NJAC is not a novel one. A review of all the past bills and reports would
show that the inclusion of an eminent person in the Judicial Commission in
appointment of judges is a concept of established provenance.
a. The
Report
Working
of
of
the
the
National
Constitution
Commission
(NCRWC) also
to
Review
known
as
the
the
C
Venkatachaliah
Committee
proposed
five-member
selection
Constitution
(98th Amendment) Bill, 2003 by the NDA Govt. Here the eminent
person was to be nominated by the President in consultation with the
Prime Minister.
c. The Judicial Appointments Commission Bill, 2013 further expanded
the commission with the inclusion of two eminent members thus
making it a six-member commission, which included the Chief Justice
of India, the 2 senior most judges, the Law Minister and 2 eminent
members.
35E.
Parliament
while
passing
the
99th
who will
be best
placed to
Green Tribunal
who
judges
is
members.
under
the
a f ormer judge,
The
members
Chairperson
members
are
III.
The presence of the Union Minister for Law and Justice on the NJAC
does not affect the independence of the judiciary
36. It is respectfully submitted that the presence of the Union Minister for Law
and Justice (Law Minister) on the NJAC as mandated by the 99th
Amendment does not, in any way, affect the independence of the judiciary
or in any manner, abrogate the basic structure of the Constitution. Rather,
the presence of the Law Minister will help in making the NJAC more
effective as a recommendatory body, providing inputs to assist in the bodys
decision-making.
It
is
respectfully
submitted
that
the
petitioners
26
27
Court. Even the personal traits of the members of the Bar and the
Judges are quite often fully known to the Chief Justice of India and
the Chief Justice of the High Court who get such information from
various sources. There may, however, be some personal trait of an
individual lawyer or Judge, which may be better known to the
executive and may be unknown to the Chief Justice of India and the
Chief Justice of the High Court, and which may be relevant for
assessing his potential to become a good Judge. It is for this reason,
that the executive is also one of the consultees in the process of
appointment. The object of selecting the best men to constitute the
superior judiciary is achieved by requiring consultation with not only
the judiciary but also the executive to ensure that every relevant
particular about the candidate is known and duly weighed as a result
of effective consultation between all the consultees before the
appointment is made. It is the role assigned to the judiciary and the
executive in the process of appointment of Judges which is the true
index for deciding the question of primacy between them, in case of
any difference in their opinion. The answer which best subserves this
constitutional purpose would be the correct answer.
28
46. It is respectfully submitted that the presence of the Law Minister therefore
ensures that the appointment process to the judiciary, while not at all being
subservient to the Government, is also not entirely remote from the needs
of the society it is supposed to serve. The Law Minister, as a representative
of the political executive and also being accountable to the Parliament will
ensure that the NJAC functions in a manner broadly accountable to the
nation while appointing judges.
47. Therefore the presence of the Law Minister is not contrary to the norms of
judicial independence, and in fact subserves a vital role in ensuring the
effective functioning of the NJAC.
30
48. As explained in paras 43-58 of Part II of the Written Submissions, checks and
balances are inherent in all powers and functions relating to the judiciary in
the Constitution of India. This is evident from the structure of every
provision in Chapter IV of Part V which relates to the powers of the Supreme
Court, and likewise Chapter V of Part VI relating to High Courts.
49. A check and balance implies that no one person or institution shall have
unfettered discretion in any decision. Checks and balances are not just a
fetter on the power of the Government, but on the functioning of every
single constitutional authority. The need for such checks and balances
between the different departments of Government has been explained by
James Madison in The Federalist No. 51, as follows:
But the great security against a gradual concentration of the
several powers in the same department, consists in giving to those
who administer each department the necessary constitutional means
and personal motives to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be made
commensurate to the danger of attack. Ambition must be made to
counteract ambition. The interest of the man must be connected
with the constitutional rights of the place. It may be a reflection on
human nature, that such devices should be necessary to control the
abuses of government. But what is government itself, but the
greatest of all reflections on human nature? If men were angels, no
government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be
necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable
31
the government to control the governed; and in the next place oblige
it to control itself. A dependence on the people is, no doubt, the
primary control on the government; but experience has taught
mankind the necessity of auxiliary precautions.
50. It was to prevent unfettered discretion of the Executive that the framers of
the Constitution adopted a method of appointment that required the
President to mandatorily consult the Chief Justice of India before making all
Supreme Court appointments, and the Chief Justice of the concerned High
Court, the Governor of the concerned state besides the Chief Justice of
India for appointments to a High Court.
51. The inclusion of the Law Minister in the NJAC redraws the equilibrium to
ensure that no one organ can have the unfettered discretion to appoint
judges. A healthy presence of members of the executive and the judiciary
can be seen in most judicial appointments commissions worldwide. If there
is no executive or judicial member, then they are mandatory consultees or
the ultimate appointing authority (See Annexure VI). Thus the inclusion of a
member of the executive is in keeping with the need for checks and
balances mandated by the Constitution.
d. The presence of one member of the executive in a commission of six
members does not affect judicial independence
52. It is acknowledged that the Law Minister is a representative of the Union
of India, which
32
33
The reasoning in the NCLT case has also been followed recently by this
Honble Court in its decision rendered on 14th May 2015 in Madras Bar
Association v. Union of India 2015 SCC OnLine SC 484 (judgment of
Sikri J.).
55. It is submitted therefore that a harmonious reading of the NTT case and the
NCLT case leads to the conclusion that the Executive can have a role to play
in the selection of judges to those tribunals or courts where it is not a party
in every case before the Court. Further, both these decisions were rendered
in the context of tribunals, where the issue of checks and balances in the
exercise of power was not a constitutional imperative. Finally, it must be
borne in mind that the Law Minister is one member in a commission of six
members. Thus neither does he constitute a majority, nor can he singlehandedly block any recommendation of the NJAC. Hence being a distinct
numerical minority (1outof6) on the NJAC means that the Executives role is
34
57. The only basis for these suppositions are unsubstantiated speculation of the
possibility of abuse of power, not just by the Law Minister but also the
judges and eminent persons who will combine in different ways to appoint
judges for extraneous considerations. Considering the argument of abuse of
power as a ground for denying the power, and rejecting it, a 9-Judge
Constitution Bench of this Honble Court in Mafatlal Industries Ltd. v.
Union of India, (1997) 5 SCC 536 summarised a catena of precedents and
held as follows (at p. 619):
88. To the same effect are the observations by Khanna, J.
in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225: 1973
Supp SCR 1] (SCR at p. 755 : SCC p. 669). The learned Judge said:
(SCC p. 821, para 1535)
35
58. It is respectfully submitted that the mere possibility of the abuse of power
by an authority therefore cannot be sufficient, in law, to deny the vesting of
the power in that authority and cannot rebut the presumption of
constitutionality enjoyed by legislative enactments.
59. A similar argument was raised by the petitioners in Centre for PIL v Union
of India (2011) 4 SCC 1 with respect to the High Powered Committee that
was set up under Section 4 of the Central Vigilance Commission Act, 2003.
The Court held (at p. 33):
81.The 2003 Act is enacted with the intention that such HighPowered Committee will act in a bipartisan manner and shall
perform its statutory duties keeping in view the larger national
36
63. It is also humbly submitted that the presence of the Law Minister cannot be
presumed to affect the independence of the judiciary, since the Central
Government is not party to every dispute being agitated before the Supreme
Court. Further, the Law Minister is only 1 out of a
37
IV.
The setting up of the NJAC has two key advantages, viz., transparency
and accountability in the matter of appointments
a. Transparency and accountability in the matter of appointment of judges
are essential for the public to repose their confidence in the judiciary
64. It is respectfully submitted that the independence of the judiciary
connotes independence from wide ranging forms of pressure not
merely political or executive control, but freedom even from the class
to which Judges belong. This was explained by Bhagwati J. (as he then
was) in the First Judges case, as follows (at p. 223):
27.It is necessary to remind ourselves that the concept of
independence of the judiciary is not limited only to independence
from executive pressure or influence but it is a much wider concept
which takes within its sweep independence from many other
pressures and prejudices. It has many dimensions, namely,
fearlessness of other power centers, economic or political,
andfreedom from prejudices acquired and nourished by the class to
which the Judges belong. If we may again quote the eloquent words
ofJustice Krishna Iyer:
Independence of the Judiciary is not genuflexion; nor is it opposition
to every proposition of Government. It is neither Judiciary made to
Opposition measure nor Governments pleasure.
(Emphasis
supplied)
65. One of the cardinal requirements of ensuring judicial independence is
selection of persons of highest merit and competence who are able to
38
66. The
Latimer
House
Principles
(Commonwealth
Principles
on
the
39
2003,
available
at
<www.cpahq.org/cpahq/cpadocs/Latimer%20House%20Principles.pdf>)
67. The need for transparency and accountability through the publics right to
know becomes all the more necessary since the higher courts in India not
only perform their traditional role as adjudicators of disputes between
citizens or between citizen and the State, but also a non-traditional role
under the PIL jurisdiction where they have taken on wide ranging issues on
public matters. On account of this unique, unconventional role played by
the higher judiciary in India, affecting wide ranging matters of public
importance which affect millions of citizens, there is a greater need for
transparency and openness in the matter of judicial appointments.
68. In Renu and Ors. v. District and Sessions Judge, Tis Hazari Courts, Delhi
and Anr. (2014) 14 SCC 50, Chauhan J. observed the need for greater
transparency in the matter of appointments to any judicial institution
(applicable even to Class IV employees in subordinate Courts), in general (at
pp. 56-57):
4. .Our basic concern is that the appointments in judicial
institutions must be made on the touchstone of equality of
opportunity enshrined in Article 14 read with Article 16 of the
40
70. It is respectfully submitted that the right to information has been held to be
an integral part of the right to free speech and expression under Article
19(1)(a) of the Constitution and the same has been recognised by this
Honble Court as well in a catena of decisions.
41
71. In Indian Express Newspapers v. Union of India (1985) 1 SCC 641, this
Honble Court per Venkataramiah J. upheld (at pp. 685-686) the right to
information as being part of the freedom of speech and expression and
relied on the dictum of Lord Simon of Glaisdale in Attorney General v.
Times Newspapers Ltd (1973) 3 All ER 54 at p. 81:
68. The public interest in freedom of discussion (of which the
freedom of the press is one aspect) stems from the requirement that
members of a democratic society should be sufficiently informed
that they may influence intelligently the decisions which may affect
themselves. Freedom of expression, as learned writers have
observed, has four broad social purposes to serve: (i) it helps an
individual to attain self-fulfilment, (ii) it assists in the discovery of
truth, (iii) it strengthens the capacity of an individual in
participating in decision-making, and (iv) it provides a mechanism by
which it would be possible to establish a reasonable balance between
stability and social change. All members of society should be able to
form their own beliefs and communicate them freely to others. In
sum, the fundamental principle involved here is the peoples right to
know. Freedom of speech and expression should, therefore, receive a
generous support from all those who believe in the participation of
people in the administration
72. In State of U.P. v. Raj Narain (1975) 4 SCC 428, which involved the
question of government privilege under Section 123 of the Evidence Act, this
Honble Court observed per Ray CJI(at p. 453):
74.In a government of responsibility like ours, where all the agents
of the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not absolute,
is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public
security.
73. In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers Bombay (P) Ltd. (1988) 4 SCC 592, this Honble Court
42
interpreted the right to know as emanating from the right to life. Mukharji
J. observed (at p. 613):
34.We must remember that the people at large have a right to
know in order to be able to take part in a participatory development
in the industrial life and democracy. Right to know is a basic right
which citizens of a free country aspire in the broader horizon of the
right to live in this age on our land under Article 21 of our
Constitution. That right has reached new dimensions and urgency.
The right puts greater responsibility upon those who take upon
themselves the responsibility to inform.
74. It is respectfully submitted that the NJAC, will be a public authority under
Section 2(h) of the Right to Information Act, 2005, open to scrutiny and
accountability. At the time when the Second Judges case was decided,
there was no statutory right to information. Today the right to information
is the norm and secrecy the exception. This is the principle that is sought to
be captured by Parliament by the 99th Amendment.
misconduct.
While
soft
accountability
measures
are
not
diversity of the
members
each
on
member to
one
45
V.
80. The 99th Amendment inserts Article 124A into the Constitution, clause (2) of
which lays down:
Article 124A(2): No act or proceedings of the National Judicial
Appointments Commission shall be questioned or invalidated merely
on the ground of the existence of any vacancy or defect in the
constitution of the Commission.
81. It is humbly submitted that clause (2) of Article 124A is meant to ensure
that a constitutional process is not held up due to unavailability of one or
more of its members, since any defect in its constitution or vacancy would
not substantially impact the appointment.
82. According to Article 124A, the NJAC is to consist of 6 members - the Chief
Justice of India as the Chairperson, 2 other senior judges of the Supreme
Court next to the Chief Justice, the Law Minister and 2 eminent persons to
be selected by a Committee consisting of the Prime Minister, the Chief
Justice of India and the Leader of Opposition in the House of the People or
where there is no such Leader of Opposition, then the Leader of the single
largest Opposition Party in the House of the People. Thus, 4 members out of
the 6 in the NJAC are ex officio and would ordinarily always be available.
83. It is also respectfully submitted that a clause of this nature is not novel to
the 99th Amendment. Such clauses can be found in a number of statutes
enacted by the Parliament. A list
found at Annexure VIII. This Honble Court has time and again
46
upheld the validity of such enactments and has in fact given these provisions
a wide interpretation.
18.The High Court was of the view that such defect as there was in
regard to publication of the Plan was cured by Section 76J the
Omnibus Curative clause to which we earlier made a reference as the
'Ganga' clause. Provisions similar to Section 76J are found in several
modern Acts and their object is to put beyond challenge defects of
constitution of statutory bodies and defects of procedure which have
not led to any substantial prejudice.We are inclined to agree with
the High Court that a defective publication which has otherwise
served its purpose is not sufficient to render illegal what is
published and that such defect is cured by Section 76J.
87. In Peoples Union for Civil Liberties v. Union of India (2005) 5 SCC 363,
it was heldper Santosh Hegde J. (at p. 371):
15. It is nextly argued by the learned counsel for the petitioner
that there was no proper consultation amongst the members of the
Selection Committee. This is based on the fact that one of the
members who was then the Leader of Opposition in the Council of
States did not respond to the intimation sent to him in regard to the
selection of the members since he was in hospital at that point of
time. A perusal of the Act does not show that there is any quorum
fixed for the selection nor does it provide for any meeting nor has
any particular procedure been provided for. Under the Act,
consultation by circulation is not impermissible. In such a situation,
if one out of six did not respond, it would not vitiate the opinion of
the other five members. On the contrary sub-section (2) of Section 4
specifically says that no appointment of a Chairperson or a member
shall be invalid merely by reason of any vacancy in the Committee.
In the instant case the Prime Minister, the Speaker of the House of
the People, Minister in charge of the Ministry of Home Affairs in the
Government of India, Leader of Opposition in the House of the
People and Deputy Chairman of the Council of States having agreed
on the appointment of the second respondent, we find no statutory
error in the appointment of the second respondent.
88.
89.
49
VI.
Section 3 of the 99th Amendment Act inserting Article 124C does not
abrogate the basic structure of the Constitution
a. Independence of the judiciary does not mean independence from
Parliamentary law
91. It has been contended by Mr. Arvind Datar, learned Senior Counsel, that the
provision affects the independence of the judiciary by allowing Parliament
the final say with regard to the procedure governing appointments. To meet
this contention, it is necessary to understand what Article 124C provides and
correlate it with what independence of the judiciary entails.
92. Article 124C empowers the Parliament in two respects: first, it vests
Parliament with the legislative competence to regulate the procedure for
appointment of Supreme Court and High Court judges; second, it provides
the legal basis for the Parliament to empower the NJAC to lay down by
regulations the procedure for discharge of its functions, manner of selection
of persons and other matters considered necessary.
50
93. From the Constituent Assembly Debates as well as the scheme of the
Constitution, it is clear that independence of the judiciary does not mean
independence from Parliamentary law. Further, no precedent of this
Honble Court has held this to be so.
94. This proposition is borne out clearly from the Constituent Assembly Debates.
Article 50 of the Constitution which forms a part of the Directive Principles
of State Policy states,
State shall take steps to separate the judiciary from the executive in
the public services of the State
However, it is pertinent to note that the Constituent Assembly
rejected Professor KT Shahs amendment to this article in the Draft
Constitution which sought independence from Parliament as well.
Per KT Shah, 23rd May 1949 (Constituent Assembly Debates, Vol. VIII,
Book 3, p. 218):
Sir, I move:
That under Chapter IV of Part V, the following new article be
added:102-A. Subject to this constitution the Judiciary in India shall be
completely separate from and wholly independent of the Executive
or the Legislature.
[Mr. K.T Shah while proposing Article 102-A stated]In this amendment: it is not merely the separation of judiciary from
the Executive, but also its independence, and I want it to be also
separate from the legislature and the executive.
In response, KM Munshi on 23rd May 1949 (Constituent Assembly
51
52
the Parliament with the power of impeaching a judge of the High Court by
stating:
53
In
Mrs.
Sarojini
Ramaswami
v.
Union
of
India
enact laws determining the salaries, pension and other privileges of Judges
of Supreme Court:
54
Judges (Salaries and Conditions of Service) Act, 1958 which has been
amended from time to time. An analogous constitutional provision and
statute exists pertaining to High Court judges. Article 221 of the
Constitution allows the Parliament to enact laws determining the salaries,
pension and other privileges of Judges of High Court:
Article 221(1): There shall be paid to the Judges of each High Court
such salaries as may be determined by Parliament by law and, until
provision in that behalf is so made, such salaries as are specified in
the Second Schedule.
Article 221(2): Every Judge shall be entitled to such allowances and
to such rights in respect of leave of absence and pension as may from
time to time be determined by or under law made by Parliament and,
until so determined, to such allowances and rights as are specified in
the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his
disadvantage after his appointment.
105.
has
been
(Salaries
amended
and
from
55
106.
c. The Parliament has the authority to enact laws laying down the
suitability criteria pertaining to the appointment and selection of
judges of the Supreme Court and High Courts
56
107.
57
Article 124(3) of the Constitution only laid down the eligibility criteria of
being appointed as a Judge of the Supreme Court by enumerating the
qualifications requiredArticle 124(3): A person shall not be qualified for appointment as a
Judge of the Supreme Court unless he is a citizen of India and-(a) has been for at least five years a Judge of a High Court or of two
or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of
two or more such courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
110.
and
as fitness
person
Constitution has only laid down the eligibility criteria for appointment
of judges and the consultation procedure which is the manner in which
the s uitability of a candidate is assessed is not enumerated in the
58
111.
of the Chief Justice of India and Judges of the Supreme Court of India (See
Annexure X) enumerates seniority as an indicator of suitability of a
candidate for appointment as Chief Justice of India by laying down, at para
2:
Appointment to the office of the Chief Justice of India should be of
the seniormost Judge of the Supreme Court considered fit to hold the
office. The Union Minister of Law, Justice and Company Affairs
would, at the appropriate time, seek the recommendation of the
outgoing Chief Justice of India for the appointment of the next Chief
Justice of India.
Whenever there is any doubt about the fitness of the seniormost
Judge to hold the office of the Chief Justice of India, consultation
with other Judges as envisaged in Article 124(2) of the Constitution
would be made for appointment of the next Chief Justice of India.
112.
Therefore, it
include
Constitution
is submitted
suitability criteria
that
within
it is
the
not
imperative to
provisions
of the
59
60
G. SUMMARY OF SUBMISSIONS
In light of the above arguments, it is humbly submitted that:
I.
II.
III.
IV.
The presence of the Union Minister for Law and Justice of the
Government of India does not affect the independence of the
judiciary, is constitutionally valid and necessary to select the most
appropriate persons for judicial office.
V.
61