NJAC V.COLLEGIUM Submitted by P.Mohandas Reg. No. BA0150026 Under the Guidance of Ms.Nikita Patajoshi Assistant Professor TAMIL NADU NATIONAL LAW SCHOOL (A State University established by Act No. 9 of 2012) Tiruchirappalli Tamil Nadu – 620 009 MARCH – 2017 Ms.Nikita Patajoshi Assistant Professor in Constitutional law-II Tamil Nadu National Law School Tiruchirappalli Tamil Nadu – 620 009 CERTIFICATE This is to certify that the project work entitled NJAC V. COLLEGIUM is a bonafide record of the research work done by P.Mohandas, under my supervision and guidance. It has not been submitted by any other University for the award of any degree, diploma, associate ship, fellowship or for any other similar recognition. Place: Tiruchirappalli Signature of the Guide P.Mohandas Reg. No. BA0150026– II Year B.A. LLB.(Hons.) Tamil Nadu National Law School Tiruchirappalli Tamil Nadu – 620 009 DECLARATION I, P.Mohandas, do hereby declare that the project entitled NJAC V. COLLEGIUM submitted to Tamil Nadu National Law School in partial fulfillment of requirement for award of degree in Under Graduate in Law to Tamil Nadu National Law School, Tiruchirappalli, is my original research work. It and has not been formed basis for award of any degree or diploma or fellowship or any other title to any other candidate of any university. Counter Signed Signature of the Candidate Project Guide ACKNOWLEDGEMENT At the outset, I take this opportunity to thank my ProfessorMs.Nikita Patajoshi from the bottom of my heart who has been of immense help during moments of anxiety and torpidity while the project was taking its crucial shape. Secondly, I convey my deepest regards to the Vice Chancellor Dr.KAMALA SANKARAN and the administrative staff of TNNLS who held the project in high esteem by providing reliable information in the form of library infrastructure and database connections in times of need. Thirdly, the contribution made by my parents and friends by foregoing their precious time is unforgettable and highly solicited. Their valuable advice and timely supervision paved the way for the successful completion of this project. Finally, I thank the Almighty who gave me the courage and stamina to confront all hurdles during the making of this project. Words aren’t sufficient to acknowledge the tremendous contributions of various people involved in this project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly and earnestly thank all the people who were involved directly or indirectly during this project making which helped me to come out with flying colors. TABLE OF CONTENTS CHAPTER I INTRODUCTION CHAPTER II CONSTITUTIONAL BACKGROND EMERGENCE OF COLLEGIUM S.P. Gupta case Proposal for setting up of judicial commission POSITION AFTER 1993 S.C Advocates on record association v. union of India. In Special Reference case of 1998 or the Three Judges Case (October 28,1998) NATIONAL JUDICIAL APPOINTMENTS COMMISSION CHAPER III Constitutionality of the NJAC How was NJAC better than collegium system Justice Chelamehwar The Preamble of the NJAC Act Independence of Judiciary Justice Khehar Singh Reforming collegium CHAPTER IV Conclusion TABLE OF CASES 1. Shamsher Singh v State of Punjab (1974) (2) SCC 831 2. S.P. Gupta v President Of India And Ors, (1981) Suppl. (1) SCC 87 3. Subhash Sharma v Union of India, 1991(1)Suppl. SCC 574 4. Supreme Court Advocates-on-Record Association and Anr v Union of India , (1993) 4 SCC 441 5. In re Special Reference No.1 of 1998, (1998) 7 SCC 739 6. Supreme Court Advocates-on-Record Association and Anr v Union of India, W.P. (C) No. 13 of 2015 CHAPTER I INTRODUCTION The collegium system is the process through which decisions related to appointment and transfer of judges in supreme court and high court is taken by a collegium which consists of CJI and four senior most judges of supreme court and three members of the high court (in the matter related to the high court)including chief justice of the high court. The ongoing conflict between the judiciary and the government regarding the appointment of judges is not something that started yesterday our country’s legal scenario has been experiencing this problem from the early 1970s during the advent of the Indira Gandhi era, the late prime minister’s appointment of A.N.RAY over three senior judges caused political complications like never before , India in her post independence period had never witnessed such strong arming by the legislature against the judiciary. . Article 124 and 217 of the constitution of India deal with the appointment of Supreme court and High court judges What followed was a slew of judgments that would go on to establish a new method for the appointment of judges, namely the Collegium System which was formulated in the Second Judges’ Case and then further legitimised in the Third Judges’ Case. At the same time, the Parliament was trying all it can to reverse the principles laid down by the apex court in order to bring about their involvement in the appointment of judges. Claims and Counter-Claims were exchanged which then culminated in the NJAC Bill. This particular bill was a result of years of problems within the Collegium System. The system turned out to be archaic and also the lack of transparency and accountability would turn out to be very problematic. Arguments were made regarding the closed doors functioning of the Collegium giving rise to claims of corruption and scandalous appointments as such. The new NJAC would comprise of The Chief Justice, Two other senior most judges, The Law minister and two eminent persons appointed by the Prime Minister, The leader of Opposition or the Chief Justice of India and the working would be such that, if any two members veto a decision then it would be considered as a veto of the candidate meaning the appointment cannot go forward. Here the researcher is going to check the constitutionality of the NJAC and check which system would be better suitable for the Indian judiciary. CHAPTER II Constitutional Background Art 124(2) of the Indian Constitution provides that the judges of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the state as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years. Also provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Similar provisions are given under Art 217 1 and Art 222(1)2regarding the High Court judges. EMERGENCE OF COLLEGIUM AND NJAC: Appointment of Supreme Court judges before 1993 Before the year 1993 the president’s power to appoint the supreme court judges was purely of a formal nature, for, he would act in this manner , as in other matters, on the advice of the concerned ministers the law minister. The final power to appoint Supreme Court judges rested with the executive and the views expressed by the chief justice were not regarded as not binding on the executive. For long, the practice in India had been to appoint the senior most judge of the Supreme Court as the chief justice whenever the vacancy occur dint hat office. In 1958, the law commission criticized the practice on the ground that a chief justice should not only be an able and experienced judge but also an competent administrator and, therefore, sucession to the office should not be regulated by mere seniority.3 the government did not act upon this recommendation for long it continued the convention process. 1 Every judge of a high court shall be appointed by the President by warrant under his hand and seal afterconsultation with the Chief Justice of India, the governor of the state, and in case of appointment of a judge other than the Chief Justice of the High Court and shall hold office in case of an additional acting judge, as provided in article 224, and in any other case, until he attains the age of sixty two years. 2 The president may, after consultation with the Chief Justice of India, may transfer a judge from one high courtto the any other High Court. 3 Law comm.,XIV Rep.,I,39-40(1958) In 1973,the government suddenly departed from this practice and appointed as chief justice a judge [justice A.N RAY] who was forth in the order of seniority. Thus, three senior judges were by passed, who then resigned from the court in protest. This raised the hue and sry in the country and the government was accused of tampering with the independence of judiciary. Although the government invoked the law commission’s recommendation to support the step taken by it, no one believed that the seniority rule have been jettisoned only because of what the law commission had said a few years back. Again in 1976, the government appoint justice BEG as the chief justice by passing justice KHANNA who was the senior to him at the time. Consequently justice KHANNA resigned in post. However, after the retirements of chief justice BEG the senior most judge, justice CHANDRACHUD was appointed as the chief justice. Since then again the rule of seniority has been followed in the matter of appointment of the chief justice of India. S.P. Gupta Case4 The S.P.Gupta case was taken up by a 5 judge bench of the Supreme Court and thereby a few postulates was laid down by the Supreme Court accordingly which were considered to be very controversial. This case is otherwise referred to as the “First Judges Case”. In this case, several writ petitions were filed in the various high courts under Article 226 by several lawyers. All these were transferred to the Supreme Court for disposal. Although the chief aspect that was dealt with by the court was with regards to the transfer of judges in this case, this case would also talk about the appointment of judges and the opinion on the same process which is going to be the point of our study. The primary question faced by the Supreme Court was as to whether the process of appointment 4 S.P. Gupta v. President of India and Ors., 1981 Suppl. (1) SCC 87 of judges, would involve within itself, the concept of primacy of the opinion given by the person who is participating in that particular process? The Supreme Court in the opinion of the researcher took a retrograde step in this particular judgment because of the fact that the majority opinion in this case held that the opinion of the Chief Justice of India and the Chief Justice of the High Court as the case maybe, was merely “consultative” and not any more than that. Particularly, it was held that the power of appointment would then vest solely with the Central Government and not the Judiciary itself. Accordingly, this was said to be a literal interpretation of the word “consultation” by the judiciary and also that such literal meanings being taken into consideration would mean that the executive primacy was being rooted for by the Court in this regard of the appointment of the judges as such. With Reference to Article 124(2) and Article 217(1) it was to be so held that the Supreme Court would allow only the mere consultation power to the Chief Justice of India and the Chief Justice of the High Court as the case may be. In Para 29, Page 226 of the Judgment, Justice P.N.Bhagwati states that, “It is obvious on a plain reading of clause (2) of Article 124 that it is the President, which in effect and substance means the Central Government, which is empowered by the Constitution to appoint Judges of the Supreme Court.” And in the same paragraph he again is quoted as stating that, “It is clear on a plain reading of these two articles that the Chief Justice of India, the Chief Justice of the High court, and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.” These two aforementioned paragraphs can be used to satisfactorily sum up the arguments of the Supreme Court. In Simple terms, it was said that the participation of the judicial elements in the case of appointment of judges was merely consultative and not binding or having any particular value that binds the judgment. The Ultimate power therefore lies in the hands of the Central Government. This judgment thus gave almost near unfettered power to the legislature and the executive which in turn would create more problems than it solves PROPOSAL FOR SETTING UP OF THE JUDICIAL COMMISSION In its 121st report issued in 1987, the law commission has advocated the setting up of a judicial commission. In 1987, after the cse of S.P Gupta,5 the executive came to wield overriding powers in the matter of selection and appointment of judges. The commission was unhappy with the sitution prevailing at the time. Criticizing the system prevailing in 1987, the law commission observes: Accordingly, the law commission suggested that a National Judicial Commission be set up. But the law commission did not work out its composition and function. In this regard, the law commission said: composition and functions of such a National judicial service commission will have to be worked out in meticulous detail. Tentatively, however, the law commission suggested the following composition: Chief justice of India (chairman);three senior most judges of the supreme court ;retiring chief justice of India ; three chief justice of the high court’s according to the seniority; Ministry of law and justice, Government of India; Attorney general of India, and an outstanding law academic. The law commission issued its report 1987.it is clear that it was primarily to dilute the executive power, and as a hedge against executive interference with the judiciary, that the law commission mooted the idea of judicial commission. since then the things have changed as a result of the two supreme court cases. In fact, the 121 st report of the law commission played a significant role in the supreme court decision in Advocates on Record case in 1994. Position after 1993 The process of selection and appointment of the judges is crucial to the maintenance of independence of judiciary. If the final power in this respect is left with the executive, then it is 5 S.P.Gupta v. Union of India ,AIR 1982 SC 149:1981 Supp SCC 87. possible for the executive to subvert the independence of the judiciary by appointing pliable judges. The constitution does not lay down the very definitive procedure for the purpose as it merely says that the president is to appoint supreme court judges in consultation with chief justice and such other judges of the supreme court and of the high court’s as “the president may deem necessary”[Art.124(2)]. It was not clear from this provision as to whose opinion was final to prevail in case of difference of opinion among the concerned persons. This important question has been considered by the Supreme Court in several cases. In 1991, in subash Sharma v. union of India 6 ,a three judge bench of the supreme court expressed the view that consistent with the constitutional purpose and process, as expressed in the preamble to the constitution, “it becomes imperative that the role of the institution of the chief justice of India be recognized as of crucial importance in the matter of appointment of the supreme court..” As regards with the word “consultation” in Art.124 (2), the court said: “The constitutional phraseology would require be reading and expounding in the context of the constitutional philosophy of separation of powers to the extent recognized and adumbrated and the cherish values judicial independence”. The bench suggested that this question be considered by a larger bench. Subsequent to the Subhash Sharma case, the question of the process of appointing the supreme court judges came to be considered by the supreme court in, S.C Advocates on record association v. union of india.7 A public interest litigation was filed in the supreme court by the lawyers association raising several issues concerning the judges of the supreme court and the high court. The petition was considered by the a bench of nine judges. The majority Judgment was delivered by J.S.VERMA, ., on behalf of himself and YOGESWAR DAYAL,G.N RAY,A.S.ANAND and BHARUCHA, JJ. 6 AIR 1991 SC 631,641 :1991 Supp(1) SCC 574 7 AIR 1994 SC 268 (1993) 4 SCC 441 The court considered the question of the primacy of the opinion of the chief justice of India in regard to the appointment of the supreme court judges. The court emphasized that the question has to be considered in the context overachieving “the constitutional purpose of selecting the best” suitable for composition of the supreme court “so essential to ensure the independence of the judiciary, and, thereby to preserve democracy. The court has pointed out that the provision of the consultation with the chief justice was introduced because of the realization that the chief justice is best equipped to know and access the worth of the candidate and his suitability for appointment as a supreme court judge, and it was also necessary to eliminate political influence. The court has also emphasized that the phraseology used in the Art.124 (2) indicates that it was not desirable to vest absolute discretion or power of veto in the chief justice as an individual in the matter of appointment so that there should remain some power with the executive to be exercised as a check, whenever necessary. Accordingly the court observed: “The Indication is that in the choice of the candidate suitable for appointment, the opinion of the chief justice of India should have the greatest weight, the selection should be mad easy a result of a partisipatory consultative process in which the executive should have power to act as a mere check on the exercise of power by chief justice of india,to achieve the constitutional purpose. Thus ,the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason the word consolation instead of concurrence was used ,but that was done merely to indicate that absolute discretion was not given to anyone, not even to the chief justice to an individual. Thus, in the matter of appointment of a supreme court judge, the primary aim ought to be to reach an agreed decision taking into account the views of all the consul tees given the greatest weight to the opinion of the chief justice. When decision is reached by the consensus, no question of primacy arises. Only when conflicting emerge at the end of the process, the question of giving primacy to the opinion of the chief justice arises , “unless for a good reasons known to the executive and disclose to the chief justice of India, that appointment is not considered to be suitable. Therefore, the meaning of the “opinion of the chief justice” is “reflective of the opinion of the judiciary” which means that “it must necessarily have the element of plurality in its formation”. the final opinion expressed by the chief justice is not merely his individual opinion but “the collective opinion formed after taking into account the views of some other judges who are traditionally associated with the function”. 3. In Special Reference case of 1998 or the Three Judges Case (October 28,1998) Nothing great came about from this case. In the third judges’ case the composition of the collegium was enlarged to address the concerns about ‘error and disagreement’ elements within collegium consultation and grave allegations of arbitrariness on the part of CJI, the concept of “primacy” of the collegium over the executive was strongly reinforced. 8 The Third Judges Case of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R.Narayanan, in July 1998 under his constitutional powers. In 1998, President K.R. Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for appointments/transfers; this came to be the present form of the collegium. On a reference from former president K.R. Narayan, the Supreme Court lays down that the CJI’s should consult with a plurality of four senior- most SC judges to form his opinion on judicial appointments and transfers. The criticisms of the third judges case is that seniority of supreme court judges doesn’t always imply superiority of wisdom and also, what is the harm in consulting all the Supreme Court judges for appointing a High Court. The main purpose underlying the law laid down by the supreme court in the matter of appointing supreme court judges was to minimize the political influence in judicial appointment as well as to minimize individual discretion of the constitutional functionaries involve dint he process of appointment of the supreme court judges. 8 Purushothaman, Purush, Higher Judicial Appointments in India – The Dilemma and the Hope: Trusting the Wisdom of theGenerations (September 10, 2012). NUALS L.J. Vol. 8, 2014 Thus, the responsibility to make recommendations for appointment as supreme court judges has been taken away from the central executive and has now been placed on a collegium consisting of the chief justice of India and four senior most puisne judges. The fear of consultation has thus been broadened. Before this opinion was delivered, this collegium consisted of the chief justice and two senior most judges. The court has now specifically stated that an opinion formed by the chief justice of India in any manner other than that indicated has no primacy in matter of appointments to the Supreme Court and the government is obliged to act thereon. The process of consultation among the members of the collegium has now been formalized as every member judge has to give his opinion in writing. NATIONAL JUDICIAL APPOINTMENTS COMMISSION: National Judicial Appointments Commission bill was passed by the union government in the year 2013 citing the urgent need for bringing transparency into the judicial system but as soon as it was passed it was struck down by the judiciary stating its unconstitutionality. The NJAC is a manifestation of a perpetual fight between the government and the judiciary with the former governments has tried time and again to control the judiciary, but if that happen’s the whole democratic machinery would perish in minutes. The scars of the emergency era are still afresh in the minds of the public and the judiciary and almost everyone has faintest idea of what happened when the government strong armed the judiciary as in the case of Indira Gandhi and A.N.ray. but the possibility of judiciary becoming a puppet in the hands of the government is something that is hardly possible in India, for this we owe our gratitude to our constitutional forefathers and Montesquieu for his theory of separation of powers. But nonetheless the government still tries to control the appointment of judges and the result is the NJAC bill. The main reason for the striking down of the NJAC bill is its blatant contravention to our constitutional ideals . This can be clearly seen in the composition of the NJAC committee as it consists of: The chief Justice (ex officio) Two senior judges The law minister Two eminent persons These two eminent persons would be elected by a committee that consists of the folloowing members; The Chief Justice of India The Prime Minister of India The leader of opposition in the Lok Sabha Unconstitutionality: The major criticism arose regarding the procedure in which the commission functions , the commission is vested with utmost powers such as selection and appointment of judges in the highest of the court present into our nation . But when it comes to the selection of judges to the respective courts the consent of five members out of the six is necessary which means if two members dissent then the selection won’t happen. This makes much more sense when we realize that the government indirectly can veto any selection made by the rest of the members as there is already a member of the executive along with two eminent persons (who were elected by a committee composed of majority government officials.) CHAPTER III CONSTITUTIONALITY OF THE NJAC: How was the NJAC better than the collegium system? The National Judicial Appointments Commission was passed to replace the collegium system. It sought to effectively remove the issues and make better the procedure of appointment of judges to the High Court and Supreme Court of India. While the main issues with the collegium system included transparency and the power of appointing judges remained with the judges, the NJAC took a more practical approach. The act promoted the relationship between the executive and the judiciary. It provided the President the power to reconsider the recommendations made by the commission. So essentially, two wings of the Indian democracy was included in the appointment of judges. The commission ensured more transparency and accountability, this was one of the major changes to be included with respect to the collegium system which was opaque and provided no amount of transparency or accountability. This would ensure that the executive would also be kept in loop regarding the appointments. Another major benefit the NJAC sought to provide was that it would remove the elements of nepotism and favoritism and appoint candidates based on merit and experience. This was a major step in the interest of justice when we consider the fact that the collegium system did not always appoint judges based on merit, but certain appointments were based on factors such as nepotism, favoritism, bribery etc. The benefits of the NJAC act were many, including a check on corruption and non-arbitrary appointment of judges to the High court and Supreme Court of India. The non-arbitrary selection was ensured because of the implementation of the power to veto by the members. The act provides that if any two members of the commission do not accept a proposal or a recommendation then that person shall not be recommended for appointment. These were among the most prominent advantages of the NJAC over the collegium system.9 Justice Chelameshwar Justice Chelameshwar provided the dissenting opinion in this particular case and it is quite significant to note because of the fact that, he was the only person with the dissenting opinion in the 5 judge bench of the Supreme Court. With regard to the point regarding the absence of guidelines for the appointments as was criticized by the other judges, he pointed out in para 113 that, “To contend that the AMENDMENT is destructive of the basic structure since it does not lay down any guidelines tantamount to holding that the design of the Constitution as originally enacted is defective” 9 Sameeksha v salimath, sanmathi Dayanand, Rajath Francis Vithayathil-NATIONAL JUDICIAL APPOINTMENTS COMMISSION:A COMPREHENSIVE REVIEW, IINTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND ALLIED ISSUES[VOLUME 1 ISSUE 4] With regard to the veto power that is being accorded as per the provisions of the said Act, he held that, the particular provision alone would be held as violative of that of the basic structure of the Constitution and not the Act as a whole in itself. Moreover, the core of his argument was based on the fact that the judicial independence would not essentially mean judicial primacy and therefore the same cannot be said to be a valid point in order to strike down the proposed amendment as he felt that, the disaster that was created in some of the cases in the judiciary, would “justify the participation of the members of the civil society in the process to eliminate the…maladies involved” The Preamble of the NJAC Act itself provides that it is – An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of the High Courts and for their transfers and for matters connected therewith or incidental thereto.10 The NJAC system requires that the process of judicial appointments shall be initiated by the Central Government by intimating the vacancies for the post of Judges in the Supreme Court and the High Court. Section 6(6) of the NJAC Act provides that if any two members of the NJAC do not agree to recommend any candidate for appointment as a judge of the High Court or the Supreme Court, the NJAC is not authorized to make such recommendation. This is one of the most controversial provisions in the NJAC Act for it vests in the hands of any two members of the NJAC a virtual veto power over any judicial appointment.11Also, it is worth noting that three out of six members of the NJAC are ‘either politicians or people in whose appointment a politician would have a 10 The National Judicial Appointments Commission Act, 2014, Preamble 11 C. Raj Kumar, Reasons why the NJAC Act is bad in law, THE ECONOMIC TIMES (May 3,2015), http://articles.economictimes.indiatimes.com/2015-05-03/news/61768151_1_cji-njacact- national-judicial-appointments-commission hand’.12This veto power, if allowed to be excerised on purely political considerations (against which there is no safeguard in either the NJAC Act or the accompanying Constitutional amendment), can result in a potential constitutional crisis. 13 Also, the seniority norm14, whereby the senior most judge of the Supreme Court is elevated to the office of the Chief Justice of India when the incumbent Chief Justice leaves the office15 is done away with. As this article will argue, giving maximum weight to the opinion of the Chief Justice of India (by inserting a ‘Concurrence Clause’) in order to protect the appointments of judges to the Supreme Court and the High Courts being made on purely political considerations was a method proposed during the drafting stage itself. The NJAC system, however, affords no such protection to the process of appointments. One of arguments against the NJAC Act before the pending litigation before the Supreme Court right now, in fact, is that by giving no weight age to the views of the Chief Justice of India the NJAC Act violates the basic structure of the Constitution. Meanwhile, whereas any judicial commission being set up for the purpose of regulating the procedure of judicial appointments to higher judiciary has ensure ‘the independence of the system from inappropriate politicization’16, the NJAC system of appointments suffers from systemic inefficiencies that make the system dangerously susceptible to political influence. As it is, a retired Supreme Court judge has alleged political pressures in appointment of judges during the previous UPA administration that has been reported in the media. In this context, once 12 Sachin P. Mampatta, Judges, research analysts and the fine art of breath control, BUSINESSSTANDARD (April 13, 2015), http://www.business-standard.com/article/opinion/judgesresearch- analysts-and-the-fine-art-of-breath-control-115041300567_1.html 13 C. Raj Kumar, supra note 26. See also Appointment of 125 High Court judges put on holdafter NJAC notification, INDIA TV (May 12, 2015), http://www.indiatvnews.com/news/india/appointment-of-125-high-court-judges-put-on-hold- 49737.html 14 See Abhinav Chandrachud, Supreme Court’s Seniority Norm: Historical Origins,ECONOMIC & POLITICAL WEEKLY, Vol. XLVII, No. 8 (February, 2012), 26 15 Abhinav Chandrachud, supra note 29 at 26. 16 Ajit Prakash Shah, supra note 5 at 29 commentator has very aptly noted that the NJAC system is akin to, “… trying to reduce match- fixing by including casino owners in the team selection committee.” Based on the above mentioned failings of the NJAC, the SC in October 2015, struck down the 99th Constitutional Amendment that introduced Arts. 124-A, 124-B and 124-C into the CoI. Now that the NJAC was made non-functional, the SC sought to bring back the old Collegium System, though it is unclear as to how the SC applied the Doctrine of Revival in this circumstance. The court said that it violates the basic structure of the constitution. ‘INDEPENDENCE OF JUDICIARY’: THE ORIGINALIST ARGUMENT The corresponding provision to article 124 of the Constitution in the draft Constitution was article 103 that was exhaustively discussed on May 24th, 1949. A total of 23 speakers spoke for a total of 52 times that day. A clearer understanding of the concerns and apprehensions of the founding fathers, as they faced them on May 24th, 1949, while debating the methods that would be best suited to ensure the independence of the judiciary are extremely important, especially if in 2015 a workable solution to this problem is to be arrived at. Many of these concerns are very similar to the concerns as faced in contemporary times. But a deeper examination of these concerns also shows that the phrase ‘independence of the judiciary’ was understood by the founders in a certain way. Our experience has shown that several of their key concerns were correct. The unfortunate incidents of supersession of judges by the executive for political reasons has happened more than once in the history of the Supreme Court of India. Our experience also tells us that the methods proposed to address those concerns havenot worked as well as the founding fathers would have liked. Any attempt to put in place a new constitutional solution for this problem without taking a moment to consult the concerns that went behind older solutions that did not work is bound to result in further disappointment. The executive has attempted to influence the working of the judiciary in the past. Prime Minister Indira Gandhi attempted, and almost succeeded, to have a ‘committed judiciary’ for purely political reasons. It is important to investigate what was the understanding of the phrase ‘independence of judiciary’ as used by the founding fathers. It is equally important to understand what kind of constitutional safeguards they were willing to provide in order to make sure that the judiciary stays independent. It appears that the founding fathers had three primary concerns in mind – (1) Protections at the stage of appointment; (2) Protections while the judge is on the Bench; and (3) Protection against postretirement entitlements and prohibitions being used to influence judicial behavior. The first concern was addressed mostly by suggesting a ‘Concurrence Clause’ (whereby the concurrence of the Chief Justice of India was made mandatory in appointment of judges to the Supreme Court). Another suggested method was a ‘Confirmation Clause’ (requiring the confirmation of the Chief Justice of India from the Council of State’). The second concern was mostly addressed by suggesting changes in the age of retirement and impeachment provisions. The third concern was addressed by suggesting changes in (a) what the judges may or may not be allowed to do after their retirement, and (b) inserting a ‘Permission Clause’ (that required the retired judge to take permission of the President to engage in any post-retirement job).There were discussions about tenure, salaries and pension of the judges as well. By examining the speeches made on May 24th, 1949 we can gain considerable understanding in what was meant by the founding fathers when they used the expression ‘independence of judiciary’ and what were the methods they thought were desirable to achieve that end. Justice Khehar Singh Justice Khehar was completely in support of the concept of Judicial independence and also in favour of the Collegium system because it supports the Judicial independence better. In para 8 of the judgment he said that, “The independence of judiciary is inextricably linked and connected with the constitutional process of appointment of judges of the higher judiciary. ‘Independence of Judiciary’ is the basic feature of our Constitution and if it means what we have discussed above, then the Framers of the Constitution could have never intended to give this power to the executive.” Consequently, he would say that the attempt by the legislature was not to make any peripheral change to the constitution but rather a substantial change would seemingly be irreversible. Therefore he felt that there was a need to understand whether through the amendment the power of the Parliament was “so enlarged as to obliterated any or all of the Constitutional limitations so placed…” and said that when so analysed the Amendment proposed by the legislature in the instant case would fall foul to the constitutional limitations as such. Further, quoting another judgment, Justice Khehar would state in Para 15 that, “The Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted” The most significant point that he raised was in para 85 wherein he said that, “It cannot be gainsaid that the CJI being the head of the Indian Judiciary and paterfamilias of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary and he in that capacity evaluates the merit of the candidate with regard to his/her professional attainments, legal ability etc. and offers his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a superimposition test under the guise of over guarding the judiciary” This is quite significant because Justice Khehar recognizes that the CJI is the head of the judiciary and that there can be no power that can take away the power of the judiciary with respect to its independence. Significantly, he laid down that if there are flaws in the Collegium then the same can be met with and rectified on a case to case basis. The judges didn’t give full support to the collegium system but they also accepted that reforms to be needed to correct the existing collegium system. REFORMING COLLIGIUM SYSTEM A report was filed by Ms. Pinky Anand and Arvind P. Datar, Senior Advocate on the various suggestions that could be taken up for the modification of the Collegium system. The various suggestions were based on five categories being which were a. Transparency b. Eligibility c. Secretariat d. Complaints e. Miscellaneous17 a. Transparency The different proposals at a general level depended on having the best possible criteria which should allude to the age, merit, position, uprightness, salary criteria, scholarly capabilities which ought to be effortlessly accessible on the Supreme Court and High Court sites. Other pertinent data about the chose candidate ought to be available in spite of the fact that the straightforwardness to a great level acts to be counterproductive and should hamper the choice making. Subsequently, an appropriate adjustment should be struck in the middle of transparency and secrecy. The Proper system talks around a three stage process that involves the proposal and arrangement of the Judges through a consultative and participatory activity. An IB report ought to be sent by the High Court collegium to the Supreme Court and the names cleared ought to be sent to SC.18 b. Eligibility Different criteria identified with the qualification of the Judges from the High court to the Supreme Court ought to be such that: It expressed that the Chief Justices ought to be hoisted as well as alternate applicants of legitimacy ought to additionally be considered. All the High Court judges who have finished five years ought to be viewed as qualified and the three senior most judges of the High Court ought to 17 Anand. P., Datar. A.,Neo Colleguim Suggestions filed in Supreme Court. Retrieved at: http://s3.documentcloud.org/documents/2505344/pinky-anand-arvind-datar-njac- collegium.pdf 18 Ibid. at 17 para 6 pp.3 be qualified. 10% of the Supreme Court Judges ought to be from the bar. There was likewise a proposal of directing a written exam for the rise to Supreme Court.19 c. Secretariat The Union of India recommended the foundation of the Secretariat in the Supreme Court and every High Court to guarantee effective determination of judges which will be about the Members of the Bar and regional Court Judges who are delegated to a High Court. For the current judges to be delegated, legitimate data might gathered in light of the quantity of judgments conveyed, landmark cases, It ought to be totally autonomous of the official and it ought to have same status as that of the Supreme Court Registry. 20 d. Complaints The names of the candidates should be unveiled to people in general 30 days before the thought by the collegium and the general population must keep in touch with the Committee about the objections and the grievances. This would apply both for the High Court and the Supreme Court. At the point when the protestation is made, the individual ought to be given a chance to give a clarification. The examination should be by the board of resigned judges.21 e. Miscellaneous The Union of India proposed that the exchange ought to be just on the record of the administrative exigencies, irreconcilable circumstance with relatives rehearsing at the Bar or at the solicitation of the concerned judges. Adherence to the idea of transfers not being punitive likewise needs to be considered amid the transfers. A legitimate record of the data identified with the transfers should be kept. A proposal to incorporate more number of female judges was delivered as the number of the female judges is low in the High Courts.22 19 Ibid. at 17 para 7 pp. 5 20 Ibid. at 17 para 6 pp.3 21 Ibid. at 17 para 9 pp. 10 22 Ibid. at 17 para 10 pp. 11 CHAPTER IV CONCLUSION: According to the Supreme Court, the main reason as to why the NJAC model got rejected was because it did not adhere to the Basic Structure Doctrine of the Constitution and it was a threat to the independence of the judiciary. The complete idea that could be made out of the decision was such that the majority of the bench has a mind-set of concluding that the primacy of the judiciary formed a part of the essence of the Constitution and it was not to be tampered with. The basic structure has various key points as have been deduced from the judgment of Kesavananda Bharti v. Union of India but nothing of concrete meaning has been laid out in any of the judgments that talks about primacy of the judiciary as the basic structure. The majority decision held the Second Judges judgment to be valid which implied about the primacy of judiciary. The complex situation arises because of the conflict between the executive and the judiciary where the executive believes in having its share in the decision making related to the appointments but the judiciary does not want any interference of any type. The political conditions cannot be ignored at the time of the judgment. The BJP led Coalition government NDA had initiated the process of having a change in the way judges were appointed. In 2015, the NJAC procedure again came into limelight and the judiciary saw this as a way for the government to interfere in the untouched arena. The judiciary in any way did not welcome this intrusion, hence declared NJAC unconstitutional, leaving no more scope of debate at present. The judiciary felt that the Collegium system did come with its share of drawbacks and suggestions have been asked and given but the real test of the situation is whether this shall lead to any betterment or not? Only time would tell whether the NJAC was an instrument of political intrusion or a genuine mechanism to ward off the evils of the collegium system? The NJAC system gives the political class full control over the process of appointments. Such a system of judicial appoints has been tried in the past and it failed to worked. Upstanding judges had to pay a huge price and the country as a whole suffered a huge loss by losing judicial talent on the bench of the Supreme Court. Not only does the NJAC system goes against the wishes of the founding fathers, it also fails to learn the very important lesson from the apprehensions that the founding fathers had expressed, more than six decades earlier. As it was said on May 24th, 1949, and again and again by men of highest legal learning and character such as Justice H. R. Khanna, Justice M. C. Chagla and Nani A. Palkhiwala, a system of appointments of judges that gives the political class complete control of the appointments process is not suitable for Indian conditions. To borrow from Dr. Ambedkar, the sense of responsibility has not grown to the extent in our country so as to completely trust the political class with an issue as sensitive as appointment of judges to the higher judiciary. May be in future a day will come when such a system will work. But that day has not come yet. The collegium system with improvements like transparency, credibility, eligibility criterion changes can make the collegium system a flawless system. The judiciary is one of the most important organs of a civil and democratic society. Of the judiciary, it is imperative that the sovereign institution remains independent and also functions independent of the executive power as well as the legislative authority. In this regard it is to be noted that, the Supreme Court in the instant case has allowed the Judiciary to be completely independent of the other two institutions of the Government. Accordingly, as a product of judicial interpretation, the Collegium system came into existence thereby making it a first of its kind model that is unique to the Indian system.