An Anti-Constitutional Judgment

  • In the aftermath of the Supreme Court’s verdict that invalidated the 99th Constitution Amendment, rendering nugatory the National Judicial Appointments Commission (NJAC), a popular narrative has entered our conscience: that the commission is not a credible alternative to the Supreme Court’s ‘collegium.’
  • This theory is possibly based on an inherent distrust of the government exacerbated, as it is, by the present regime’s authoritarian proclivities. But such ideas, for all their apparent forcefulness, ought to be extraneous to any proper debate on the legitimacy of the Supreme Court’s ruling.
  • What we must really consider in analysing this verdict is not our respective concerns about what makes for good policy, but rather, what interpretation would ensure the greatest conformity to the Constitution’s text, to the intention of its framers, and to the document’s finest aspirations.
  • When viewed thus, the majority judgment in this case is profoundly unsatisfactory. The verdict upholds an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
  • What’s more, the judgment fails to adequately answer the fundamental question at the root of the controversy: how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure? Consequently, the decision acquires an entirely political character. It is subsumed not by constitutionalism but by an anti-democratic temper.

      Second judges case

  • As we are, by now, well aware, the Constitution, in Articles 124 and 217, is crystal clear in its mandate. It accords to the President the power to appoint judges to the Supreme Court and to the various High Courts.
  • In performing this function, the executive is required to compulsorily consult with certain persons. To make appointments to the Supreme Court, the Chief Justice of India (CJI) must always be consulted. In elevating persons to a High Court’s bench, in addition to the CJI, the Chief Justice of that High Court and the Governor of the State concerned, acting through his or her Council of Ministers, must be mandatorily conferred with.
  • In 1993, in a case commonly referred to as the Second Judges Case, the Supreme Court, sitting as a nine-judge bench, interpreted the word “consultation,” used in Articles 124 and 217, to mean concurrence.
  • In making appointments to the higher judiciary, the Court held, the executive was bound by the advise of the CJI — who acted in concert with a group that also comprised his two (later four) senior-most colleagues, a body that we today call the “collegium.”