Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment

Author(s): ARGHYA SENGUPTA

Source: Economic and Political Weekly, Vol. 50, No. 48 (NOVEMBER 28, 2015), pp. 27-30
Published by: Economic and Political Weekly
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 Judicial Primacy and
The article makes two main arguments.
First, drawing from Justices Khehar and

the Basic Structure Goel's views, it argues that there is no

sound normative reasoning in their
opinions as to why primacy of judges in
A Legal Analysis of the NJAC Judgment
appointment of judges is part of the basic
structure. Further, irrespective of the
merits of the reasoning, it cannot be the
ARGHYA SENGUPTA ratio decidendi of this case that judicial
primacy is part of the basic structure
This article is a legal analysis of since only Justices Khehar and Goel have
Supreme Court Advocates-on-Record held it to be so. Thus it lacks the clear
the Supreme Court judgment in
Tlhe Association Association
Supreme Supreme
and othersCourt and Court
vs Union of Advocates-on-Record others of vs India Union in of majority of three judges necessary to be
the appointment of judges case. It
India and others (hereinafter, "the njac binding in law as precedent. Second, the
argues that a majority of the
case") struck down the Constitution (99th net effect of the four majority views is
judges did not hold judicialAmendment) Act, 2014 (hereinafter "99th to render a portion of Article 124 and
Amendment") and the National Judicial Article 217, in substance, unamendable.
primacy to be part of the basic
Appointments Commission Act, 2014 Articles 124 and 217 deal with appoint-
structure, as has been commonly
(njac Act) as unconstitutional. These two ment of judges to the Supreme Court
misunderstood. Further, their
enactments had collectively established and High Courts respectively and lay
application of their understanding
the National Judicial Appointments Com- down a process of mandatory consulta-
mission (njac). The commission was to tion to be adopted by the President
of judicial primacy to strike down
have a determinative role in the appoint- in this regard. This judgment makes a
the presence of the Union Law
ment of judges to the Supreme Court and segment of such mandatory consultation,
Minister and eminent persons on by Parlia-
High Courts. Its establishment that is, the requirement to consult the
the National Judicial Appointments
ment was in response to the criticisms Chief Justice of India (cji), part of the
Commission is flawed. of the previous collegium method of basic structure of the Constitution and
appointments, by which senior justices consequently immune to amendment.
Consequently, the judgment has
of the Supreme Court had the last word This makes the njac judgment per
no precedential value were on who occupied judicial office. The per- incurìam the judgment of 13 judges of the
Parliament to attempt freshception of nepotism, opacity and judicial Supreme Court in Kesavananda Bharati vs
hegemony in appointmentsin
reform to bring in transparency was sought State of Kerala (hereinafter uKesavananda
to be undone by a bipartisan njac. Bharatť (1973) 4 see 225), which specifi-
judicial appointments.
However, it was not to be. The Consti- cally permitted any provision or part of
tution bench of the Supreme Court, by a the Constitution to be amended. Thus the
majority of 4:1 (Justices Khehar, Lokur, judgment has no precedential value for fu-
Goel and Joseph in the majority; Justice ture cases in Court. Similarly, were Parlia-
Chelameswar dissenting), found the njac ment to consider fresh amendments to the
to be violative of the basic structure judicial appointments process, this judg-
doctrine and hence unconstitutional. ment would be of limited consequence.
Much has been written on the distrust
of the political class, specifically the Primacy: Part of Basic Structure?
present government, that animates the Justice Khehar in his judgment strikes
views of the majority judges. To what down the 99th Amendment for violating
extent such distrust exists, and whether judicial primacy and thereby abrogating
its expression in a constitutional law the basic structure of the Constitution
dispute is justified, are important ques- (para 158). The key reasoning he provides
tions, but not the subject of enquiry of as to why judicial primacy is part of
Arghya Sengupta ( arghya.sengupta@gmail.com )
this article. Instead the article is a critical the basic structure is twofold. First,
is research director, Vidhi Centre for Legal
Policy and has a DPhil on the subject enquiry into the concept and application Articles 124 and 217, dealing with appoint-
of the
"Independence and Accountability of the ' primacy of judges in the appoint- ment of judges to the Supreme Court and
ment of judges,
Indian Higher Judiciary" from the University which is central to the High Court, respectively, have been inter-
of Oxford. He appeared for the Union of India
Court holding the njac to be violative of preted by the Court as requiring judicial
in the NJAC case.
the basic structure. primacy to protect judicial independence

Economic & Political weekly 13259 November 28, 2015 vol l no 48 2 7

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in appointments. Second, that a long- the Constitution ceases to be itself, theprimacy that has befuddled judges since
established practice of according primacy concept of an evolving basic structure isJustice Tulzapurkar's passionate but
to the opinion of the cji has existed. an anomaly. This is especially because unhelpful endorsement of the concept in
Justice Goel, who follows a similar line the basic structure doctrine is essentiallythe process of appointing judges in SP
of reasoning, supplements this view by a limitation on the amending power ofGupta vs Union of India (The First Judges'
helpfully spelling out what is meant by Parliament - if at any given- point of timeCase; 1981 Supp see 87). ForTulzapurkar J
primacy - the power to initiate a propos- it is not known to Parliament what it is in his dissenting judgment, the converse
al for appointment and the last word on expected to adhere to, then that raises of lack of executive primacy, which he
who should/should not be appointed serious questions about whether the rule felt would violate judicial independence
should both belong only to the judiciary. of law is morphing into a rule of men, in and that his brother judges in the majority
Both judges also explain why such judi- this case- judges. This paradox of an were perceived to have upheld, would be
cial primacy is perfectly consistent with evolving basic structure is a legacy of primacy of the cji.
the views of Ambedkar expressed in the this judgment and one whose detrimental However this inference is flawed
Constituent Assembly. effect on the rule of law, another pillar and flows from a misreading of the
of the same basic structure, has not been majority view in The First Judges' Case
Three Grave Flaws
fully appreciated. (Justices Bhagwati, Fazl Ali, Desai and
Third, the attempt by Justices Khehar Venkataramiah). The majority did not
There are three grave flaws in such rea-
andand
soning. First, the fact that Articles 124 Goel to demonstrate why primacy assert untrammelled executive primacy,
217 have been interpreted by the the judiciary is consistent with the as has been commonly misunderstood
ofSu-
toof Ambedkar and the Constituent since. On the contrary, they held that
spirit
preme Court to require judicial primacy
Assembly debates is baffling. It is un- neither the executive nor the judiciary
protect judicial independence in appoint-
ment cannot per se make primacy part of
doubtedly true that the purpose of incor- should have pre-eminence in the matter
the basic structure of the Constitution. If
porating the provision of consultation of appointment of judges. The view of the
rightthe cji in the appointment of judges cji should ordinarily be accepted by the
that were so, then the fact that the with
to sleep without undue disturbancewas
from
to prevent an unfettered role for the President, but if not, reasons would have to
executive.
the state has been held to be part of the However there is a considera- be provided why not so. This is consistent
ble logical
right to life under Article 21, 1 which is distance to traverse between
with the views adopted by the Supreme
thethe
part of the basic structure,2 should by lack of executive primacy in appoint-
Court earlier, in different contexts, in Union
same logic make such right to sleep ament
part of judges, which Ambedkar clearly
of India vs Sankal Chand Sheth ((19 77) 4
intended, and judicial primacy being see 193; transfer of judges) and Shamsher
of the basic structure. Though this infer-
ence is absurd, resting an argument
partof
of the basic structure of the Consti-
Singh vs State of Punjab, ((1974) 2 see 831;
tution, which was not even within the
the components of the basic structure appointment of subordinate judges).
purview of discussion in the Constituent Such a view also conforms with the
doctrine simply on how particular provi-
sions of the Constitution have been inter-
Assembly. Further, even though the cji salient rule of administrative law that
was brought into the appointments pro-the decision of the President, who as per
preted over time is equally absurd. Further
normative reasoning is needed as tocess
why Articles 124 and 217 is the appointing
to provide an apolitical view on the
particular interpretations will comprise authority, would be judicially reviewable
person sought to be appointed, Ambedkar
the basic structure whereas other inter- for being based on improper purposes,
is clear that it would be "dangerous" to
pretations will not. The majority views, give him/her a veto over appointments
irrelevant considerations or being simply
however, shed no light on what such ar- (Constituent Assembly Debates, 24 May
arbitrary. In this context, primacy was an
guments might look like. 1949). If judicial primacy, as Justice unhelpful, and erroneous, introduction
Second, even if it were to be assumed Goel points out, includes the last word,
to the jurisprudence of judicial appoint-
that an additional factor that makes ments. Justices Khehar and Goel have
then that is tantamount to a veto, and
judicial primacy in appointments part squarely
of contrary to Ambedkar's view. compounded this error by simply raising
the basic structure is its long-establishedThe only possible counterargument toit to the status of the basic structure of
this view is that the veto now belongs to the
practice, there is a further logical fallacy a Constitution without providing any
which besets this argument. If practice,
judicial collegium rather than the cji as anconvincing justification.
individual as Ambedkar meant. But such
over a period of time, can determine To the contrary, and something not
whether any particular value, in this
an argument would require a defence of widely noticed, Justice Lokur has refused
case, judicial primacy, is to be part of the
the judicial collegium, which was entirely to consider primacy to be part of the basic
basic structure, then the question that unheard of till the early 1980s, as part ofstructure of the Constitution. In fact, he
arises is whether the basic structure is as
the original constitutional scheme. Even has expressed his discomfort with the
basic as it purports to be. Given that ittoisthe most ardent defenders of the colle- concept of primacy and has instead
a well-established doctrine of constitu- gium, this is an interpretive step too far. considered appointment of judges a
tional law that the basic structure is that In the final analysis, Justices Khehar "shared responsibility" of the executive
core of the Constitution without which and Goel walk into the same trap ofand the judiciary (footnote 357, para 177).
28 November 28, 2015 vol L no 48 LUàïi Economic & Political weekly

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Further, Justice Joseph has not opined on legislation, were the njac Act to be
premised heavily on the eminent persons
primacy at all. He has simply endorsed the struck down. Hence to strike down the
exercising a veto, which is indefensible
views of his brother judges, who have incorporation of eminent persons andfor the reasons argued above. Even
expressed diametrically opposite views the Union Minister of Law primarily otherwise, they find the lack of qualifi-
on it (p 901). As a result, the most logical because they will have the power tocation of eminent persons to be vague
inference from the lack of clarity on this collectively veto what the judges say and hence unconstitutional. If vagueness
matter is that there is no unambiguous (assuming they speak in one voice) is were to be a ground for striking down
majority view in the njac judgment that plainly flawed. constitutional amendments then as Justice
primacy of judges in appointment is part This difference apart, Justice Lokur is Chelameswar rightly notes in his dissent-
of the basic structure of the Constitution. one with Justices Khehar and Goel in ing judgment, it "amounts to judicially
finding the presence of the law minister
mandating inflexible standards of consti-
Abstruse Legal Reasoning on the njac as violative of independence
tutional drafting" (para 111).
Despite expressing his discomfort with of the judiciary. Though his argument is It is judicial impropriety to strike
primacy, Justice Lokur in a surprising down a constitutional amendment for
largely historical, the core reasoning, as
and unjustifiable move considers the elaborated by Justice Khehar, essentially
being vague without even attempting to
99th Amendment and njac Act to be a hinges on a conflict of interest issue read
- it down, irrespective of what the
"package deal" as the attorney-general parties have argued. Fortunately, how-
given that the government is the largest
had remarked. He then proceeds to deal ever, Justice Lokur does not share this
litigant, it is anomalous to have the law
with the composition of the njac (in the minister having a role in judicial selec-
view and expressly allows eminent per-
amendment) together with the proce- tion, especially if he can, together withsons, of whatever qualification, to serve
dure for voting, including the veto power one other member, exercise a veto on on the njac. His "real cause for unhappi-
to any two members of the njac (in the such selection. Keeping the issue of ness" (para 509) as pointed out earlier is
njac Act) to strike down the 99th veto aside, since it conflates issues of
in giving eminent persons the veto. With
Amendment (para 451). composition and procedure, the conflictJustice Joseph having expressed no firm
Justice Lokur's primary reason forof interest argument is prima facie an view in this matter, consequently there
striking down the 99th Amendment isattractive one. is no majority view in this judgment
not because it violates judicial primacy It is true that the union government insofar as inclusion of appropriately
but rather because non-judicial membersis the largest litigant in India, as are qualified eminent persons as equal parti-
have a veto which abrogates the scheme national governments in other parts of cipants in a future njac.
of the original Article 124 that envisaged
the world. At the same time it is a plati- What is disconcerting about the discus-
mandatory consultation with the cji. tude that justice delivery must be fair sion of eminent persons is the implicit
This inference is made possible by Justiceand impartial. The only sequitur to this belief that only judges are best able
Lokur's package deal metaphor. Whilecan reasonably be that the executive to select future judges. While this is
Justice Lokur is correct in attributing thecannot have a determinative role in certainly arguable, it is by no means
phrase "package deal" to the attorney-judicial selection. beyond the pale of contestation. One can
general who had used the term to de- The presence of the law ministerargue as perfectly reasonably that there is
scribe the two enactments, he is mistakenone member out of six on the njac does little point in having a technically profi-
in using this as an aid to striking down
not give the government a determinative cient judge who is of doubtful integrity
the constitutional amendment based on role in selection at all. Further, there is or a judge perfectly capable of appreciat-
a provision in the njac Act. The keyno principled distinction between the ing complex legal argument but no ability
flaw is evidenced by his statement inlaw minister providing inputs (which to manage time or people. The complete
paragraph 451: Justice Lokur expressly allows, para 523) lack of normative reasoning as to why
It was therefore a 'package deal' presented and having a single vote as the 99th it is primarily judges who can assess
to the country in which the 99th Constitu-Amendment provided. Either a conflict such holistic qualities in future judges, is
tion Amendment Act and the njac Act were of interest principle will prevent any role conspicuous by its absence. Specifically
so interlinked that one could not operatein which case both are prohibited, or a the summary dismissal of comparative
without reference to the other.
determinative role, which the law minister examples from other countries which
While the njac Act cannot operateanyway did not have in the 99th Amend- consider it worthwhile to incorporate
without reference to the 99th Amend- ment. There is no principled halfway civil society participation in judicial ap-
ment, the converse is simply not true.house between the two. pointments, is striking. This is aptly
One can envisage a situation when the Insofar as the presence of eminent demonstrated by Justice Lokur's infer-
Constitution requires all appointments topersons on the njac is concerned, the ence from a reading of the unamended
be made by the President on the recom- majority judges are in clear disagree-provisions of the Constitutional Reform
mendation of the njac. The proceduresment. Justices Khehar and Goel strike Act, 2005 in England.
and other details of the njac could be down their presence for being violative of Justice Lokur holds, on the basis of
established by regulations or a future select legal literature, that despite a
judicial primacy. Again their argument is

Economic & Political weekly Q3QS November 28, 2015 vol l no 48 29

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commission mandateci to include non- precludes a detailing of the reasons for Goel hold it to be so, Justice Lokur does
this view. However this ratio was specifi- not. Justice Joseph, the fourth majority
legally qualified persons selecting judges,
cally overruled by a 13-judge bench of the judge simply endorses the views of the
it is impossible to contravene the wishes
of the judiciary in appointment. It isSupreme Court in Kesavananda Bharati , others without expressly considering
precisely this inference which whenwhich held that no part or provision ofprimacy to be part of the basic structure.
translated to India ought to have led to the Constitution could be immune from Thus there is no majority holding in this
the conclusion that the njac having amendment, subject to the basic structure case that primacy of judges in appoint-
only two eminent persons out of six as of the Constitution being preserved.3 It ment is part of the basic structure. Second,
members would not affect the determi- was also clear that the basic structure Justice Lokur's concurring view which
native view of the judiciary. Curiously, would have to be drawn from various rightly traces the source of judicial primacy
however, Justice Lokuťs conclusion is provisions of the Constitution and could in appointment to the exalted role played
by the cji hitherto in the appointments
rather cryptic: "So much for the appoint- not make any particular textual provision
ment process in the uk and the 'judges or part thereof, immune to amendment.process, a view shared by the remaining
appointing judges' criticism in India!" majority judges, makes a portion of Arti-
The njac judgment, in effect, canvasses
cles 124 and 217 itself the basic structure
(para 477). It is difficult to engage with a proposition analogous to the proposition
an exclamatory remark of this nature as in Golak Nath overruled by Kesavananda.
of the Constitution. This is per incuriam
a matter of constitutional law. This is because it finds the basic structureKesavananda Bharati and hence has no
precedential value. Taken together, both
to be the mandatory process of consulta-
Golak Nath Revisited tion with the cji, enshrined in Articles 124
these conclusions make it legally tenable
The usage of the veto argument to and 217. As a consequence, the relevant
strike for Parliament to propound a similarly
down the 99th Amendment is flawed for
part of both articles cannot be alteredconstituted judicial appointments com-
another reason. Since Justice Lokur does
by constitutional amendment. Hence, in mission in the future, with minor chang-
not subscribe to the basic structure es, disregarding the elaborately reasoned
effect, it renders the mandatory process
doctrine, including judicial primacyofin
consultation between the President views of the majority judges on judicial
appointment, there is no question of and
thethe cji in Articles 124 and 217, that is,
primacy and the basic structure.
one portion of these provisions, immune Finally, in view of the questionable
veto affecting such primacy. In fact, what
from amendment.
it does affect is the mandatory consultation reasoning, non sequiturs and unsubstan-
between the President and the c ji and the
It must be admitted that it is however tiated assertions that suffuse the majority
predominant role given to the cji by different
the from Golak Nath in one respect - views in a decision of such great consti-
drafters of the Constitution. This amounts
it does not prescribe a blanket bar on tutional significance, history will likely
to a view that mandatory consultation
amendment of an entire part of the Con- rank it at par with ADMJabalpur vs Shiv -
kant Shukla ((1976) 2 see 521), the Su-
stitution (Part in, as was the case in Golak
between the President and the cji is part
of the basic structure and cannot be altered
Nath). However, this difference is irrele- preme Court's humiliating genuflection
(para 530). This is a proposition that is since the effect of the judgment is before the government during the Emer-
vant
one with the basis for Justices Khehar analogous. Take a thought experiment - if gency, as one of the most poorly reasoned
and God's views (consequently, one can Parliament were to amend Article 124 to judgments handed down by the Court.
conjecture, endorsed by Justice Joseph), remove mandatory consultation with the Whereas adm Jabalpur was the conse-
that the original constitutional schemecji and replace it only with concurrence quence of too little independence, the
enshrined in Articles 124 and 217 consid-of the three senior-most judges of the njac judgment is the consequence of too
ered mandatory consultation between theSupreme Court not including the cji. Fol- much of it. Both, as is clear today, are
President and cji to be of paramount im- lowing the logic of this judgment, though equal enemies of introspection and
portance. Had this foundation not existed, judicial primacy would be maintained, sound legal reasoning.
no possible proposition of judicial primacy it is arguable that this amendment too
NOTES
in appointments could have arisen. would violate the basic structure for tak-
Hence per se this scheme of mandatorying away mandatory consultation with the 1 In re: Ramlila Maidan Incident (2012), 5 SCC 1,
para 318 (Per Chauhan J).
consultation between the President and cji and his historical and conventional
2 IR Coelho vs State of Tamil Nadu (2007), 2 SCC 1.
cji laid down in the unamended Articles 3 Proposition (vii), Summary of Conclusions,
. role in appointments. Thus, in effect, this
para 1537, also in opinion of Khanna J, para 1434.
124 and 217 would be part of the basic judgment renders a key portion of Articles
structure of the Constitution. 124 and 217, in substance, unamendable.
Economic&PoliticalwEEKLY
It is this proposition that makes the
njac judgment analogous to the ratio in Conclusions available at
Golak Nath vs State of Punjab (hereinafter There are three conclusions from a close
Delhi Magazine Distributors Pvt Ltd
"Golak Nath"; air 1967 sc 1643). In Golak legal analysis of the judgment: First, judi-
110, Bangla Sahib Marg
Nath , an 11-judge bench of the Supreme cial primacy has not been unambiguously New Delhi 110 001
Court held that no fundamental rightheld to be part of the basic structure of the Ph: 41561062/63
could be amended by Parliament. Space Constitution. Though Justices Khehar and

30 NOVEMBER 28, 2015 VOL L NO 48 MJVI Economic & Political WEEKLY

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