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Supreme Court Advocates on Record Association vs Union of India: The 99th Amendment and the NJAC was held void & unconstitutional

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Court: In the Supreme Court of India Civil Original Jurisdiction

Case No: Writ Petition (Civil) No. 13 of 2015

Citation: (2016) 5 SCC 1, (2016) 2 SCC (LS) 253

Petitioner: Supreme Court Advocates on Record Association 

Respondent: Union of India

Bench: Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel

FACTS

  1. The directive principle of “Separation of Judiciary from the executive” speaks about power separation between the judiciary and the executive which is also important to upheld the democratic system in the country as per given in the Constitution under Article 50[1].
  2. A writ petition was filed by the Advocates on Record Association of the Supreme Court questioning the constitutional validity of the 99th Amendment and more specifically the National Judicial Appointment Commission (NJAC).
  3. The writ petition challenged the NJAC on the grounds that it breached the basic structure of the Constitution by compromising the independent functioning of the judiciary.
  4. In the case of “S.P Gupta v. Union of India[2]”, which gave the executive the primacy in appointing the judges of the higher judiciary, and also declared that the advice and recommendation of the CJI are only opinion and the main power lies with the Central Government.
  5. In the case of “Subhash Sharma v. Union of India[3]”, the Court suggested that the decision given in the case of “S.P Gupta v. Union of India” should be considered by a larger bench. In this case the court affirmed the proposal of a judicial commission in appointing of judges of the higher judiciary.
  6. In the case of “Supreme Court Advocates on Record Association vs Union of India[4], 1993” the majority verdict gave back the CJI, his power to appoint and transfer of judges. The verdict also said that the CJI only needed to seek advice of two senior-most judges of the Supreme Court.
  7. President K.R Narayanan, sought a reference from the Supreme Court to clarify this standing, the SC laid down that the CJI will have to seek advice of four senior-most judges of the SC to come to the opinion of judicial appointment and transfer[5].
  8. The ‘Venkatachaliah Commission’ was formed by the then government (NDA) to review the functioning of the Constitution. It was this commission who recommended the formulation of a judicial commission for the appointment and transfer of judges at higher judiciary. But they suggested that the commission will consist of two senior-most judges and the CJI. The other members would have been the union minister of law and justice and a distinguished person, who would be selected by the president after discussing with the CJI.
  9. But before the Constitutional Bill,2003 which aimed at introducing the ‘National Judicial Commission’ (Ninety-Eighth Amendment) could be passed, the Lok Sabha was dissolved.
  10. After that the next government (UPA) introduced another Constitutional Bill, 2013 (120th Amendment) which gave equal powers to both the judiciary and the executive in the appointment and transfer of judges. According to this bill the commission consists of equal number of members from the judiciary as well as the executive.
  11. In the year 2014, the then government (NDA) introduced another Constitutional bill, 2014 (121st Amendment) which was passed by both the houses and was approved by the president. The Constitutional Bill, 2014 and the NJAC was to come into force from 13 April 2015.
  12. Later the 99th Amendment came into force on 13th April 2015, which had some more changes in some of the articles of the Constitution and included the provisions of 124A, 124B, 124C (Provisions related to NJAC).

ISSUES

Issues raised before the Court were:

  1. Whether the 99th Amendment (2014) of the Constitution was valid or not?
  2. Whether the NJAC violates the “Principles of Separation of Powers” and hence unconstitutional or not?

RELATED PROVISIONS

Article 124A, 124B, 124C[6] – All these sections were introduced by the legislature in its Ninety Ninth Amendment and these provisions specifically provided the information about the NJAC.

  • The NJAC would consist of the Chief Justice of India, and two other senior judges of the Apex Court. It would also consist of the union minister in charge of Law and Justice at that time, and two other distinguished persons selected by a committee consisting of the Prime Minister, the chief justice of India and the opposition leader or the leader of the single largest party in the House of the People.
  • Provided information about the functioning of the commission.
  • Procedure for the appointment of the CJI and all other judges of the High Court and the Supreme Court can be regulated by the Parliament which can also authorize the commission to set down all the regulations for the same.

Article 217, 222, 224, 224A[7] all these sections were amended in the ninety-ninth amendment which gave power to the NJAC in recommending and giving consultation to the president for the appointing and transfer of judges.

Article 128[8] was amended in the ninety-ninth amendment and the words Chief Justice of India was replaced by NJAC.

Article 50 – Speaks about the separation of power of the judiciary from the executive and also empowers the state to take such steps to keep these two bodies separated in the public service of the state.

CONTENTION

Respondent

On behalf of the respondent, U.O.I, the Attorney General argued in front of the Court that the process of appointment and transfer of the judges in higher judiciary should be brought in light to the civil society under the fundamental right to information. He argued that the freedom of speech and expression gives the fundamental right to know and to prove his arguments he cited some of the famous cases:

  • Attorney General vs. Times Newspapers Ltd[9]
  • Indian Express Newspapers vs. Union of India[10]
  • State of U.P. vs. Raj Narain[11]

The Attorney General also argued that the NJAC would come under the RTI Act as its main motive would be to keep the process of appointment and transfer of judges transparent in front of the civil society. He also argued that the NJAC would help remove the lack of transparency that prevails in the collegium system and will also help in maintaining fairness and be impartial in the process of appointing and transferring of judges.

He also argued that no provisions are there in the Constitution which says that judges will appoint judges for higher judiciary. He also emphasized on the fact that the NJAC would not only make the process transparent but would also broaden the base of consideration of such candidates as judges. According to him the NJAC introduced through the ninety ninth amendment does not infringe the basic structure of the Constitution and that the parliament had only discharged its responsibility towards its citizens by making the process of appointing and transferring of judges meaningful and transparent.

Petitioner

According to the petitioner, the process of appointing of judges could not be shared with the executive or the legislature as it is a judicial responsibility and is one of the most important functions of the judiciary. They also pointed out the fact that the independence of the judiciary from the executive and the legislature has been compromised in this amendment and the NJAC. They also argued that the legislature has tried to decrease the primacy earlier vested with the judiciary (Article 124 and 217- as originally enacted) and that non-disclosure of any proper reason as why the existing process was viewed as unsuitable, proves the motive of decreasing or taking away of primacy from the judiciary. According to the petitioners the new amendment was entirely trustworthy as it did not clearly establish or affirm the superiority of the judiciary and hence the independence of the judiciary is not preserved in this amendment.

RATIONALE

This case was decided by a five-bench judge where the ratio of the judgement passed was 4:1. Justices Khehar, Lokur, Goel and Joseph were against the 99th Amendment and the NJAC, and they termed the amendment and the NJAC as unconstitutional as according to the them the primacy and the independency of the judiciary from the executive was a part of the basic structure of the constitution under the directive principle of “Separation of power of the Judiciary from the Executive” (Article 50). Though the majority judgement was given in for of the collegium system, it was also acknowledged by the judges that the system of appointment and transform of judges should be made more simple, effective and transparent. It was also pointed out that the 99th amendment and the NJAC does not consider the fact that making all the information of the selected individuals as public may also impact the reputation and the dignity of such individual and also a breach of privacy as there may be some sensitive information about that individual who is nominated for the appointment or transfer as a judge in the higher judiciary. They pointed out that both the right to information and privacy are implicit rights and are required to be balanced. Justice Lokur also stated that “‘merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a dhobi-ghat.”

Justice Chelameswar was the only one in the bench who held that the ninety-ninth amendment and the NJAC was not unconstitutional. According to him the collegium system was not transparent enough and he also stated that the NJAC could have functioned “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”

INFERENCE

According to me the judgement given by the bench was decent enough as in a democracy system it is very important that the judiciary stay independent from the executive as the major function that is vested on the judiciary is to keep in check that no human rights are violated by the executive or the legislature by making or implementing or while executing any law in the country. People in the country have ultimate faith in the judiciary of the country which would have been destroyed if the 99th amendment and the NJAC was not declared void and unconstitutional. If the 99th amendment and the NJAC would have been allowed then the people of the country could have easily accused the judiciary for having political influence inside the judiciary which could have threatened the democracy of the country and would have also threatened the trust and the reputation that the judiciary had in the eyes of the people. It has also to be noted that the Union Minister of Law and Justice is a member of the executive and if he was included in any functioning of the judiciary, it would have been a violation of Article 50 (Separation of powers). Moreover, the union minister is also a member of a political party which could have raised the chances for the people and the other political parties to believe that the judiciary will lean its judgements in favour of the political party in power at that time in any case where the government or that particular party or any member of that political party is a party in that case. The independence of the judiciary should always be held and according to me the judiciary should be made an autonomous body in the country for its smooth and fair functioning.

REFERENCE

[1] INDIA CONST. art. 50.

[2] S.P Gupta v. Union of India, AIR 1982 SC 149

[3] Subhash Sharma v. Union of India, 1991 Supp (1) SCC 574

[4] Supreme Court Advocates on Record Association vs Union of India, AIR 1994 SC 268

[5] Special Reference No.1 of 1998 AIR 1999 SC 1

[6] INDIA CONST. art. 124A, 124B & 124C, amended by The Constitution (Ninety-Ninth Amendment) Act, 2014

[7] INDIA CONST. art. 217, 222, 224 & 224A, amended by The Constitution (Ninety-Ninth Amendment) Act, 2014

[8]  INDIA CONST. art. 128, amended by The Constitution (Ninety-Ninth Amendment) Act, 2014

[9] Attorney General vs. Times Newspapers Ltd., 1973 3 All ER 54.

[10] Indian Express Newspapers vs. Union of India, (1985) 1 SCC 641.

[11] U.P. vs. Raj Narain, (1975) 4 SCC 428.

AUTHOR:

SUBHRONIL GHOSH

ADAMAS UNIVERSITY, SCHOOL OF LAW & JUSTICE

B.B.A LL. B(HONS)