Supreme Court Advocates-onRecord Association and Another v. Union of India
- ByPravleen Kaur --
- 06 May 2025 --
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I. Introduction
A. Brief overview of the case
This case deals with the constitutional validity of the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. The core issue relates to the process of selection and appointment of judges to the higher judiciary (Chief Justices and Judges of the High Courts and the Supreme Court), as well as the transfer of Chief Justices and Judges from one High Court to another.
The petitioners challenged the constitutional validity of the 99th Amendment and the NJAC Act, which sought to replace the existing "collegium system" of judicial appointments with a new mechanism involving the NJAC, a body comprising members from the judiciary, executive, and eminent persons. The respondents, including the Union of India, argued for reconsideration of the earlier judgments in the Second and Third Judges cases, which had established the primacy of the Chief Justice of India in the appointment process.
B. Importance of the judgment
This judgment is of immense significance as it deals with the fundamental issue of judicial independence and the delicate balance of power between the executive and the judiciary in the appointment of judges to the higher courts. The judgment upholds the principles laid down in the Second and Third Judges cases, which had established the primacy of the Chief Justice of India and the collegium system in the appointment process, as a means to safeguard the independence of the judiciary.
The judgment reaffirms the position that the independence of the judiciary is a part of the basic structure of the Constitution and that the appointment of judges is an integral part of this independence. It holds that the 99th Amendment and the NJAC Act violate this basic structure by diluting the primacy of the judiciary in the appointment process and introducing excessive executive involvement.
The judgment has far-reaching implications for the separation of powers and the system of checks and balances enshrined in the Constitution. It underscores the importance of an independent judiciary as a bulwark against potential executive overreach and as a guardian of the rule of law and individual liberties.
II. Background of the Case
A. Parties involved
The main parties involved in this case were:
Supreme Court Advocates-on-Record Association and others: The petitioners who challenged the constitutional validity of the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act.
Union of India: The respondent, represented by the Attorney General and the Solicitor General, who defended the constitutional amendments and the NJAC Act.
B. Facts of the case
The case arose from the enactment of the 99th Constitutional Amendment Act and the NJAC Act by the Parliament of India in 2014. These legislations aimed to replace the existing system of appointing judges to the higher judiciary (Supreme Court and High Courts) through a collegium system, with a new system involving the National Judicial Appointments Commission (NJAC).
The collegium system, established by the Supreme Court's judgments in the Second and Third Judges Cases, gave primacy to the opinion of the Chief Justice of India in the appointment of judges. The new NJAC system sought to establish a commission comprising judicial and executive members to make recommendations for judicial appointments.
C. Legal issues raised
The primary legal issues raised in this case were:
Validity of the 99th Constitutional Amendment Act: The petitioners challenged the constitutional validity of the 99th Amendment, arguing that it violated the "basic structure" of the Constitution by undermining the independence of the judiciary.
Validity of the NJAC Act: The petitioners also challenged the validity of the NJAC Act, which established the NJAC and laid down the procedure for judicial appointments.
Interpretation of Articles 124, 217, and 222: A key issue was the interpretation of Articles 124, 217, and 222 of the Constitution, which deal with the appointment of judges to the Supreme Court and High Courts. The petitioners relied on the interpretation given in the Second and Third Judges Cases, while the respondents sought to revisit and reconsider those judgments.
Primacy of the Chief Justice of India: Another crucial issue was the primacy of the Chief Justice of India in the appointment process, as established by the Second and Third Judges Cases, and whether the new NJAC system undermined this primacy.
Separation of powers and judicial independence: The case also raised broader questions about the separation of powers between the executive, legislature, and judiciary, and the extent to which the new system affected the independence of the judiciary.
These legal issues formed the crux of the case and were extensively debated and deliberated upon by the Supreme Court.Here is a detailed explanation of the Constitutional Challenges section, with the petitioners' and respondents' arguments:
III. Constitutional Challenges
A. Petitioners' Arguments
The petitioners argued that the 99th Constitutional Amendment violated the basic structure of the Constitution by undermining the independence of the judiciary. Their key arguments were:
Primacy of Judiciary: The amendment negated the primacy of the judiciary in the appointment of judges to the higher judiciary, which was established by the Supreme Court in the Second and Third Judges cases. The petitioners contended that this primacy was an essential aspect of judicial independence.
Lack of Judicial Majority: In the proposed National Judicial Appointments Commission (NJAC), the judiciary did not have an absolute majority, with only 3 out of 6 members being from the judiciary. This could allow the executive to have a greater say in judicial appointments, compromising judicial independence.
Inclusion of Executive: The presence of the Law Minister (from the executive) as a member of the NJAC was seen as a violation of the separation of powers and a threat to judicial independence, as the executive is often a major litigant before the courts.
Lack of Transparency: The petitioners criticized the lack of transparency in the NJAC's procedures and the absence of any guidelines or criteria for the selection of judges.
Violation of Basic Structure: The petitioners argued that the amendment violated the basic structure of the Constitution by undermining the independence of the judiciary, which is a crucial component of the basic structure.
B. Respondents' Arguments
The respondents, including the Union of India and various state governments, defended the constitutional validity of the 99th Amendment and the NJAC Act. Their main arguments were:
Parliamentary Sovereignty: The respondents emphasized the sovereignty of Parliament and its power to amend the Constitution, arguing that the amendment did not violate the basic structure.
Checks and Balances: The NJAC was presented as a system of checks and balances, with the judiciary still having a significant role in the appointment process and the ability to veto unsuitable candidates.
Transparency and Accountability: The respondents claimed that the NJAC would introduce greater transparency and accountability in the appointment process compared to the collegium system.
Participatory Process: The inclusion of eminent persons in the NJAC was defended as a means of introducing a participatory element and diversity in the selection process.
International Practices: The respondents cited the practices of other countries where the executive plays a role in judicial appointments, arguing that this does not necessarily undermine judicial independence.
Interpretation of Articles 124 and 217: The respondents contended that the primacy of the judiciary in appointments was an innovation introduced by the Second Judges case and not mandated by the original provisions of Articles 124 and 217 of the Constitution.
The respondents essentially argued that the 99th Amendment struck a balance between the judiciary's role in appointments and the participation of other stakeholders, without violating the basic structure of the Constitution or compromising judicial independence.# IV. The Court's Deliberation
A. Independence of the Judiciary
The independence of the judiciary is a crucial aspect of the basic structure of the Indian Constitution. It is essential for upholding the rule of law, maintaining the separation of powers, and protecting the rights and liberties enshrined in the Constitution. The judiciary's independence is not merely about the security of tenure and service conditions of judges but also about insulating the judiciary from executive or legislative control.
The court recognized that the independence of the judiciary is inextricably linked to the constitutional process of appointing judges to the higher judiciary. If the executive had absolute discretion in appointing judges, it could undermine the judiciary's independence and impartiality, as the government is often a party in cases before the courts.
B. Primacy of the Judiciary in Judicial Appointments
The court held that the primacy of the judiciary in the appointment of judges to the higher judiciary is a crucial component of the independence of the judiciary and, therefore, a part of the basic structure of the Constitution. This primacy ensures that the selection and appointment of judges are based on merit, competence, and integrity, free from executive or political influence.
The court emphasized that the framers of the Constitution intended to prevent the executive from having absolute power in appointing judges. The requirement for the President to consult the Chief Justice of India (CJI) was introduced to ensure that the judiciary had a significant role in the appointment process.
C. Interpretation of "Consultation" and "Chief Justice of India"
The court interpreted the term "consultation" in Articles 124 and 217 of the Constitution as conferring primacy to the opinion of the CJI. The CJI's opinion is not an individual opinion but represents the collective opinion of the CJI and senior judges of the Supreme Court, known as the collegium.
The court held that the President must act in accordance with the advice of the Council of Ministers, and the Council's advice must be in line with the opinion of the CJI, representing the judiciary. If the executive has cogent reasons for not accepting the CJI's recommendation, the matter should be referred back to the CJI for reconsideration. However, if the CJI and the collegium reiterate their recommendation, the appointment should ordinarily be made.
D. Role of the Executive in Judicial Appointments
While the court acknowledged the executive's role in the appointment process, it emphasized that this role should be limited. The executive can provide suggestions and feedback on the character and antecedents of the candidates proposed by the judiciary, and it can object to an appointment for disclosed reasons. However, the executive cannot have a predominant or overriding role in the appointment process, as this would undermine the independence of the judiciary.
E. Impact of Striking Down the Constitutional Amendment
The court held that striking down the constitutional amendment would not create a vacuum or disrupt the existing system of judicial appointments. Instead, the pre-existing system, as established by the Second and Third Judges cases, would be revived. Under this system, the CJI and the collegium of judges have primacy in initiating and finalizing proposals for judicial appointments, while the executive plays a limited role in providing feedback and raising objections, if any.
The court acknowledged that there might be grievances or perceived shortcomings in the functioning of the existing system. However, these grievances cannot justify altering or damaging the basic structure of the Constitution by diminishing the primacy of the judiciary in the appointment process.
In summary, the court's deliberation centered on upholding the independence of the judiciary as a basic feature of the Constitution, with the primacy of the judiciary in the appointment of judges being an integral part of this independence. The court sought to strike a balance by recognizing the executive's role while ensuring that it does not undermine the judiciary's primacy in the appointment process.
V. The Court's Judgment
A. Summary of Key Findings
The Supreme Court delivered a landmark judgment in this case, striking down the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, as unconstitutional and void. The key findings of the Court are as follows:
The Court rejected the prayer for reference to a larger Bench and reconsideration of the Second and Third Judges cases, which had established the collegium system for appointment of judges to the higher judiciary
The Court held that the impugned constitutional amendment and the NJAC Act violated the "basic structure" of the Constitution by impinging upon the independence of the judiciary.
The Court ruled that the participation of the executive in the process of appointment of judges, as envisaged by the NJAC Act, would compromise the independence of the judiciary.
The Court affirmed the primacy of the Chief Justice of India and the collegium system in the appointment of judges to the higher judiciary, as established by the Second and Third Judges cases.
The Court declared that the system of appointment of judges to the Supreme Court and Chief Justices and Judges to the High Courts, as well as the transfer of Chief Justices and Judges of High Courts from one High Court to another (the "collegium system"), as it existed prior to the impugned constitutional amendment, shall continue to be operative.
B. Implications of the Judgment
The judgment has far-reaching implications for the judicial system in India:
Preservation of Judicial Independence: The Court has upheld the principle of judicial independence as a part of the "basic structure" of the Constitution. The judgment ensures that the appointment of judges remains insulated from executive interference, thereby safeguarding the independence of the judiciary.
Continuity of the Collegium System: The collegium system, which has been in operation since the Second Judges case in 1993, has been reaffirmed as the operative mechanism for the appointment of judges to the higher judiciary. This system, despite its criticisms, has been deemed essential to maintain the independence of the judiciary.
Separation of Powers: The judgment reinforces the doctrine of separation of powers, which is a fundamental principle of the Indian Constitution. By striking down the NJAC Act, the Court has prevented the executive from encroaching upon the domain of the judiciary in the matter of judicial appointments.
Judicial Review: The Court has asserted its power of judicial review over constitutional amendments, reiterating that even amendments passed by Parliament are subject to scrutiny to ensure they do not violate the "basic structure" of the Constitution.
Accountability and Transparency: While upholding the collegium system, the Court has acknowledged the need for introducing appropriate measures to improve its working and ensure accountability and transparency in the appointment process.
Overall, the judgment is a significant affirmation of the independence of the judiciary and the separation of powers enshrined in the Indian Constitution. It has preserved the delicate balance between the three branches of government and has safeguarded the judiciary's role as the guardian of the Constitution and the rule of law.
VI. Analysis and Critique
A. Significance of the Judgment
The Supreme Court's judgment in this case is of profound significance as it upholds the independence of the judiciary, which is a crucial tenet of India's democratic framework. By striking down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, the Court has reaffirmed the primacy of the judiciary in the appointment of judges to the higher judiciary, as established in the Second and Third Judges cases.
The judgment underscores the fact that the independence of the judiciary is a part of the basic structure of the Constitution and cannot be compromised. It upholds the principle of separation of powers and checks and balances, which are essential for maintaining the delicate balance between the three pillars of democracy – the legislature, the executive, and the judiciary.
Furthermore, the judgment reinforces the judiciary's role as the guardian of the Constitution and the protector of the fundamental rights of citizens. By asserting its authority to review constitutional amendments and strike them down if they violate the basic structure, the Court has reinforced its position as the ultimate arbiter of constitutional matters.
B. Potential Consequences and Impact
The judgment has far-reaching consequences and is likely to have a significant impact on the dynamics between the three branches of government. It effectively curtails the executive's and legislature's attempts to encroach upon the judiciary's domain and establishes the judiciary's primacy in matters related to its own composition and functioning.
The striking down of the NJAC Act means that the collegium system, which was criticized for its lack of transparency and accountability, will continue to be the method for appointing judges to the higher judiciary. This may reignite the debate on the need for reforms in the judicial appointments process to make it more transparent and inclusive.
The judgment may also have implications for the separation of powers doctrine and the extent to which the legislature can amend the Constitution. It sets a precedent that any constitutional amendment that violates the basic structure of the Constitution will be struck down, thereby limiting the Parliament's amending powers.
C. Reactions and Responses from Legal Experts and Stakeholders
The judgment has elicited a range of reactions from legal experts, stakeholders, and the general public.
Many legal experts and constitutional scholars have hailed the judgment as a landmark decision that upholds the independence of the judiciary and the basic structure doctrine. They argue that the Court has rightly protected the judiciary's autonomy and prevented any potential executive interference in judicial appointments.
However, some critics have argued that the judgment perpetuates the lack of transparency and accountability in the judicial appointments process. They contend that the collegium system, which the Court has upheld, is opaque and susceptible to nepotism and favoritism.
Political reactions have been divided along party lines, with the ruling party expressing disappointment and the opposition parties welcoming the judgment. The government has argued that the NJAC Act was an attempt to make the appointments process more transparent and inclusive, while the opposition has praised the Court for upholding the independence of the judiciary.
Civil society organizations and public interest groups have generally welcomed the judgment, viewing it as a victory for the principles of democracy and the rule of law. However, some have expressed concerns about the potential for the collegium system to be misused and have called for further reforms to ensure greater transparency and accountability in judicial appointments.
Overall, the judgment has reignited the debate on the delicate balance between the three pillars of democracy and the need to ensure the independence of the judiciary while also promoting transparency and accountability in its functioning.# VII. Conclusion
A. Final Thoughts and Observations
The issue of judicial appointments and the process for selecting judges to the higher judiciary has been a contentious and long-standing debate in India. The Supreme Court's judgments in the Second and Third Judges cases, which established the collegium system, were aimed at preserving the independence of the judiciary and ensuring that the best and most suitable candidates were appointed as judges.
However, over time, the collegium system has faced criticism for its lack of transparency, accountability, and objectivity. There have been allegations of subjective decision-making, favoritism, and a lack of representation of diverse sections of society in the appointment process.
The 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act were attempts by the Parliament to address these concerns and introduce a more broadbased and participatory process for judicial appointments. However, the Supreme Court, in its judgment, has struck down these provisions, citing concerns over the independence of the judiciary and the potential for executive interference in the appointment process.
While the Court's decision upholds the principle of judicial independence, it is clear that the collegium system is not without its flaws. The lack of transparency and accountability has eroded public confidence in the process, and there is a need for reforms to address these concerns.
B. Way Forward and Potential Reforms
Moving forward, it is essential to strike a balance between preserving the independence of the judiciary and ensuring transparency and accountability in the appointment process. Some potential reforms that could be considered include:
Increased Transparency: The collegium system could be made more transparent by publishing the reasons for recommending or rejecting candidates for judicial appointments. This would enhance public confidence in the process and address concerns of subjective decision-making.
Broader Consultation: While preserving the primacy of the judiciary in the appointment process, the collegium could consider broader consultations with stakeholders, such as bar associations, legal academics, and civil society organizations. This would ensure a more diverse and inclusive process.
Defined Criteria: Clear and objective criteria for judicial appointments could be established, taking into account factors such as professional competence, integrity, and diversity. This would help ensure that the best candidates are selected and reduce the scope for subjective decision-making.
Accountability Mechanisms: Mechanisms for accountability, such as periodic performance reviews or the possibility of removal in cases of misconduct or incompetence, could be introduced to ensure that judges continue to uphold the highest standards of integrity and professionalism.
Representation of Diverse Sections: Efforts could be made to ensure that the composition of the higher judiciary reflects the diversity of Indian society, including adequate representation of women, marginalized communities, and different regions of the country.
It is important to note that any reforms to the judicial appointment process should be undertaken in consultation with all stakeholders, including the judiciary, the executive, and civil society organizations. The ultimate goal should be to strengthen the independence, integrity, and credibility of the judicial system, which is a cornerstone of India's democratic framework.
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