That apart, Justice Khehar also fails to show us how the removal of judicial primacy in matter of judicial appointments impairs the Constitution’s basic structure. The learned judge relies on the decision in the Second Judges Case to tell us that the word “consultation” in Articles 124 and 217 means “concurrence.”
However, the necessitation of “concurrence” as being integral to the maintaining of an independent judiciary, and therefore being an essential feature of the Constitution, isn’t a reasonable sequitur from this finding.
A proper reading of the Second Judges Case would show us that there is no explicit finding in Justice J.S. Verma’s majority judgment that a primacy of judicial opinion in making appointments to the higher judiciary is a part of the Constitution’s basic structure. It is possible that the Supreme Court believed at the time that granting such primacy would make for a more independent judiciary.
However, the court did not find that this was the only way to ensure the judiciary’s autonomy. Justice Khehar’s reliance on the Second Judges Case to conclude that the removal of the collegium impairs judicial independence, violating the Constitution’s basic structure, is hence incorrect.
The other majority opinions are also similarly disordered, and have collectively created an altogether undesirable result. If anything, the 99th Amendment, quite contrary to infracting the Constitution’s basic structure, strengthened the checks and balances that were originally ingrained in the document.
The passage of the Amendment ought to have been recognised as an important moment in the strengthening of our democratic foundations.
The Supreme Court’s power to exercise judicial review is unquestionable. But, in this case, the Court’s use of that power is bitterly disappointing.