The Supreme Court has opined that the framers of the Constitution envisaged complete separation of the judiciary and the executive and viewed the appointment of judges as key to judicial independence. This is not entirely correct
Why does one misread or selectively read somethingIJ Either one has a preconceived idea or a goal they want to achieve it at any expense. The Supreme Court seems to have done precisely this, in its critique of the National Judicial Appointments Commission Act, 2014. It has relied upon the original Constitutional Assembly debates as reflecting the intent of the framers of the Constitution. This had to the done because the court was going against the text of the Constitution.
Besides, it has also sought corroboration from Articles 124 and 217 of the Constitution. Exalted phrases like “separation of power”, “balance of power” and “independence of judiciary” are not found in Articles 124 and 217, or elsewhere in the Constitution. Article 50 casts a duty on the executive to take steps to separate the judiciary from the executive. However, this obligation is not enforceable under Article 37.
Articles 124 and 217 are also differently worded. Article 124(1) shows that the Chief Justice of India cannot increase the strength of judges in the Supreme Court. Only the legislature can do it, which will involve the executive. This is the first indication that framers did not want to cocoon the judiciary from any interference. The provision also indicates the primacy of the executive through the legislature in fixing the strength of judges in the Supreme Court.
Fixing of strength is the first step in making appointments. It is only after the fixation of strength that Article 124(2) provides that every judge “shall be appointed by the President” — acting on the “aid and advice” of the Union Cabinet. This is the essence of parliamentary democracy based on the Westminster model. In other words, Article 124(2) mandates that the President must act with the “aid and advice” of the Government, but only after “consulting” the judges of the Supreme Court or even the High Court.
Theproviso to Article 124 (2) only says that while appointing a judge, other than the Chief Justice of India, the President must consult the Chief Justice of India. Notably, while appointing the Chief Justice of India the President need not consult the existing Chief Justice of India. Besides, the Constitution prescribes three categories of consultees, without prescribing which amongst them would have primacy. It merely states that the President shall appoint after consultation with “such” judges of the Supreme Court and the High Court “as he may deem necessary”. It spells out that “such” judges of the Supreme Court and of the High Court are placed at par as the consultees only. Wide discretion is left to the executive to choose from for consultation. In such a situation, to talk of primacy of the Chief Justice of India as consultee makes little sense.
Article 217 further consolidates the above view. There are three consultees indicated after the words “after consultation with”. Therefore, how can the NJAC judgement, only on the basis of text, conclude that one out of many consultees enjoys primacyIJ It is for this reason the judgement travels down to the Constitutional Assembly debates to cull out something from somewhere to support the theory of primacy of Chief Justice of India.
Here, it is necessary to indicate that the First Judges Case correctly read the text and the context when it held that the consultee judges only have an important advisory role. This was overruled in the Second Judges Case in 1992 when the Court, by totally misreading the text, concluded that the consultees have a primacy in appointment of judges while the executive only has the advisory role. This effectively translated over the years into consultee, in the text, becoming an appointee.
The Third Judges Case seals the fate by equating independence of judiciary with the appointments of judges, thereby making the term “consultation” in Article 124(2) equal to “aid and advice” of the Cabinet to the President under Article 74. It asserted that the opinion of the Collegium of judges is mandatory and binding on the President. The executive was substituted by judiciary, in so far as this executive sphere is concerned. Power of appointment of President is an executive power and not judicial or legislative.
The judges have crucially relied upon two passages from the debates to conclude that, first, the power of appointment is essentially connected with the independence of the judiciary and second, the framers did not trust the executive with absolute say in the appointment of judges and, therefore, preferred a collective system rather than primacy of executive.
This appears to be a selective reading of the two passages of the debates relied upon. The debate was in the context of Article 124 and 125, where various provisions have been made, like service conditions, termination and fixed age of retirement in order to ensure independence of judiciary. But so far as appointments are concerned there is nothing to show that it has a relation with the independence of judiciary. The middle path was adopted to ensure that best persons get appointed through consultations with those who can give the best inputs.
If both passages are read carefully, they yield contrary results. The framers did not trust the executive with absolute power. They did not provide that the judges be appointed by President merely on the advice of Council of Ministers. They diluted the power by mandating consultation with the judiciary. However, they also distrusted the Chief Justice of India and thereby gave the judiciary an advisory role only. This highlights the scope of the word “consultation” used in Article 124. One has to realise that, despite distrust of the executive, the framers of the Constitution were clear that judicial appointments are to be made by the President, who is the head of the executive and acts on the mandatory advice of the Cabinet.
(The writer is senior advocate at the Supreme Court of India)