Since the time of its inception, myLaw.net has worked on building a video archive of memories about India’s legal profession. In the process of interviewing some of our subjects – senior advocates and Supreme Court judges, we became aware of the immense shadow cast over the entire legal system by the Emergency.
Deep hurt about the Supreme Court’s abdication of its constitutional responsibility predominated their memories about the 21-month period between 1975 and 1977. But there was also a great deal of pride in some acts of brave dissent.
The educational potential of collective memory is immense. These memories about a dark period in our nation’s history should not fade. They should continue to influence our view of the professional and constitutional responsibilities of all lawyers.
On the fortieth anniversary of Indira Gandhi’s proclamation of Emergency, we bring you some of these memories that we were privileged to archive. Memories Of A Surrender is a short film that presents footage from interviews with former judges P.N. Bhagwati and V.R. Krishna Iyer and senior advocates Soli Sorabjee, Ram Jethmalani, Ashok Desai, and Raju Ramachandran.
In a landmark judgment last week – Madras Bar Association v. Union of India – a Constitution Bench of the Supreme Court held unconstitutional, the National Tax Tribunal Act, 2005. The majority opinion runs into 230 pages and deals with a host of complicated statutory and constitutional provisions. Briefly, the National Tax Tribunal Act provided for the constitution of a National Tax Tribunal (“NTT”), which had the power to adjudicate appeals from various appellate tribunals (constituted under the Income Tax Act, the Customs Act, and the Central Excise Act), where such appeals involved a substantial question of law. Before this, such appeals were heard by the jurisdictional high courts. The idea behind the NTT was to create a single forum for the hearing of tax appeals, in order to provide the uniformity and consistency that was lacking in the law because of the conflicting decisions of the various high courts.
The petitioners challenged the NTT Act on four grounds: first, that the reasons for setting up the NTT were fallacious, since there were no problems of consistency in the present jurisprudence of the high courts; secondly, deciding upon a substantial question of law was a “core judicial appellate function”, which could not be transferred to a quasi-judicial authority that lacked the basic features of a superior court; thirdly, that the enabling constitutional provision, Article 323B, inserted into the Constitution via the 42nd Amendment, violated the basic features of the Constitution (such as the rule of law, the separation of powers, and the independence of the judiciary); and fourthly, certain specific provisions of the NTT Act undermined the independence of the judiciary, and were therefore liable to be struck down. In short, the Court accepted the second and fourth contentions, while upholding the validity of Article 323B.
Examining the line of Tribunals Cases – Sampath Kumar, Chandra Kumarand Union of India v. Madras Bar Association, the Court concluded that it was settled law that judicial review in general – and the High Courts’ power to exercise judicial superintendence over the courts and tribunals in their respective jurisdictions in particular – was part of the basic structure of the Constitution. While the Parliament was competent to enact a law transferring the jurisdiction of the High Court with respect to specific subjects to other courts or tribunals, what it could not do was to transfer the constitutionally-vested power of the High Courts elsewhere. The NTT Act – the Court found – transferred only jurisdiction, and not the High Courts’ powers of superintendence under Articles 226 and 227 of the Constitution. Accordingly, the Court held that the NTT Act did not violate the basic structure.
We may pause here to notice a controversial assumption that the Court only touches upon: that ordinary legislation is subject to a basic structure challenge. From the inception of the basic structure doctrine, it has been a contested issue whether that doctrine applies only to constitutional amendments, or to ordinary laws as well. For instance, in Union of India v. R. Gandhi, a judgment handed down by a coordinate bench just four years ago, it had been found that ordinary laws could be challenged only upon the touchstone of the Constitution, and not the basic structure. In holding otherwise, without referring to prior doctrine, the Court further muddied an already confused area of law.
Transfer of adjudicatory functions and guarantees of judicial independence
The Court then turned to the issue of transfer of adjudicatory functions. In what is perhaps the most interesting part of the judgment, it noted cases from across commonwealth jurisdictions – Canada, England, and the Privy Council – to hold that in constitutions based on the “Westminster model of governance”, there was a clear demarcation of functions between the executive and the judiciary, with the two being kept independent of each other. This independence was guaranteed through provisions regulating the appointment and security of the tenure of judges. Consequently, adjudicatory powers could be transferred from traditional courts only if the forums that they were being transferred to had analogous guarantees of independence. This was the only way in which the scheme of separation of powers could be maintained. Constitutionally, this proposition was supported by the L. Chandra Kumar judgment, and its insistence that the transfer of jurisdiction must be to a forum that embodies the salient features of the court from which the transfer is taking place.
Having established this, the Court then turned to the specific provisions of the NTT Act. It found that the establishment of a central tribunal (with no regional benches), the power of the central government to determine the constitution of benches and the transfer of members, the provision allowing “technical members” and “accountant members” to be appointed to the tribunal (to adjudicate substantial questions of law), the provision of a direct appeal to the Supreme Court (thus bypassing the jurisdictional High Courts) – all pointed to the fact that while the composition of the NTT was supposed to be on the same parameters as that of the judges of high courts (since, effectively, the NTT was acting as a substitute for the High Court), in practice, this was not so. Consequently, the Court held, in paragraph 90:
“Sections 5, 6, 7, 8 and 13 of the NTT Act have been held by us (to the extent indicated hereinabove) to be illegal and unconstitutional on the basis of the parameters laid down by decisions of constitutional benches of this Court and on the basis of recognized constitutional conventions referable to constitutions framed on the Westminster model. In the absence of the aforesaid provisions which have been held to be unconstitutional, the remaining provisions have been rendered otiose and worthless, and as such, the provisions of the NTT Act, as a whole, are hereby set aside.”
What is curious about this paragraph is its reliance upon constitutional conventions to strike down legislation. This is surely a first! Constitutional conventions are – as the term suggests – conventions, that is, practices that have acquired strong normative and binding force because of a long period of consistent adherence. To hold a convention to be legally enforceable is a category mistake – what distinguishes constitutional provisions from constitutional conventions is precisely their legal standing. As the reasoning above demonstrates, the Court had no need to resort to conventions: the reasoning in the Tribunals Cases was enough for it to hold that a transfer of jurisdiction must be to a forum with the relevant trappings of a court. In the alternative, if it was of a mind to invoke the Westminster constitutional model, it could simply have held that the independence of the judiciary was a structural feature of a Westminster Constitution (as, incidentally, was held in some of the cases that the Court cited from abroad, none of which relied upon conventions). Structural analysis, that is, inferring constitutional obligations not directly from the constitutional text, but by way of necessary implications from its overall scheme and structure – is an accepted form of constitutional adjudication, widely prevalent in the United States, and – although controversial, most famously in Kesavananda Bharati – used in India as well, on occasion (see, for instance, the Delhi High Court’s finding of the word “sex” in Article 15 including “sexual orientation”). In holding constitutional conventions to be legally enforceable, the Court has – with respect – created an entirely unnecessary minefield for the future.
In a brief and pithy concurring opinion, Justice Nariman decided the case on the narrow ground that the legislature was not permitted to divest superior courts of record from the core judicial function of deciding substantial questions of law. He relied upon Chandra Kumar, which had clearly held that “tribunals are competent to hear matters where the vires ofstatutory provisions are questioned. However, in dischargingthis duty, they cannot act as substitutes for the High Courts andthe Supreme Court which have, under our constitutional set-up,been specifically entrusted with such an obligation. Theirfunction in this respect is only supplementary and all suchdecisions of the Tribunals will be subject to scrutiny before aDivision Bench of the respective High Courts.” In supplanting the scrutiny of the High Court, the Act bypassed its constitutionally guaranteed power under Article 227, as well as falling foul of Chandra Kumar.
Madras Bar Association v. Union of India is correctly decided. Its holding, that the adjudication of substantial questions of law cannot be transferred to tribunals that lack the substantive trappings of the High Court, is clearly consistent with Chandra Kumar, Article 227 of the Constitution, and the structural foundations of the Westminster Model. In simultaneously holding that ordinary laws can be subjected to a basic structure challenge, and that constitutional conventions can be used to strike down an otherwise validly enacted law, the Supreme Court has, however, ventured into uncertain territory. It remains to be seen what implications this will have for the future.
The Judicial Appointments Commission (“JAC”) that has been proposed for the appointment of judges to the Supreme Court and the High Courts (“judges”) including the Chief Justice of India does not guarantee better outcomes. The proposal contemplates a more transparent and broad-based process compared to the current “judicial collegium system”. However, it does not make merit the dominant criterion for appointment and so risks making the process subject to elaborate political bargaining.
Role of Parliament: After the 120th Constitution Amendment Bill (“the Amendment”) is enacted and brought in force, the President will appoint judges on the recommendation of the JAC. According to the Amendment, the Parliament can make law to provide for the composition, functions, and procedure of the JAC, as well as the manner of selection of persons for their appointment as judges. As a consequence, Parliament will also enact and bring in force the Judicial Appointments Commission Bill, 2013 (“the JAC Bill”).
Generally speaking, an amendment to the provisions of the Constitution relating to the appointment of judges requires a two-thirds majority in Parliament, as well as ratification by at least one-half of the legislatures of the States. An ordinary law requires only an ordinary majority in Parliament.
Therefore, after the Amendment and after the JAC Bill becomes the JAC Act, Parliament will only require an ordinary majority to repeal or amend the new law. Theoretically, if a single party were to achieve an absolute majority in Parliament, it could amend the composition of the JAC to suit its own ends, even to the extent of excluding the judiciary from the process completely.
Composition of the JAC: According to the JAC Bill, the JAC will be composed of six persons:
– The Chief Justice of India (the CJI) as Chairperson;
– Two other judges of the Supreme Court next to the CJI in seniority;
– The Union Minister in charge of Law and Justice; and
– Two eminent persons (to be appointed by the “collegium” consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha).
Views of members of the Bar are not explicitly a part of the appointment process, though the two “eminent persons” on the JAC may well turn out to be legal professionals. For the appointment of judges to the High Courts, the views of the respective Governor, Chief Minister, and Chief Justice of that High Court will also be elicited.
Regulations of the JAC: Crucially, Parliament will delegate to the JAC the power to make regulations specifying its own procedure for inviting recommendations, short-listing candidates, and discharging its functions. These regulations must be laid before Parliament, which will have the power to modify or annul them.
While the Amendment and the JAC Bill reveal who will be responsible for appointing judges and that there will be a procedure specified for appointment, they do not tell us what the procedure will be. That will be specified in the regulations.
Who can be a judge?
According to the JAC Bill, the JAC will have a duty to ensure that the person recommended by it is of “ability, integrity and standing in the legal profession”. This is in addition to the constitutional requirements of prior judicial or advocacy experience that currently apply (ignoring the “distinguished jurists” provision for the moment).
In a pure merit-based system, relevant factors would only be those that have regard to a person’s suitability for judgeship. Judges’ appointments would not be means to any other ends. While it is significant that the JAC Bill provides a merit-based statutory standard for the appointment of judges, an equally relevant question arises about those who may not be appointed despite fulfilling that standard. Unless the regulations of the JAC go on to specify that “ability, integrity and standing in the legal profession” (or a more sophisticated merit-based standard consistent with it) will be the only or dominant criterion, it appears that it would be open to the JAC to consider other factors in appointing judges, provided that the statutory standard is satisfied. (Compare this with a relatively open merit-based selection process for an appointment to the Supreme Court of the United Kingdom).
The challenge faced the JAC: The history of appointment of judges in India is marked by a tussle for control between the executive and the judiciary. Many perceive the JAC to be another salvo in this exchange. This perception can be changed if the JAC will emphasise and give primacy to merit-based factors in its regulations and functioning. Whether it is the collegium system or the JAC, the standards on the basis of which judges are appointed should be more important than the persons who appoint them, bearing in mind that those who appoint must have the necessary information and tools to make that qualitative assessment.
As with the collegium, the success of the JAC, assessed from the perspective of judicial independence and impartiality, will depend on how it will frame its own regulations for inviting recommendations and short-listing candidates, and which factors it will consider while discharging its functions. Without stating standards for selection, there is no inherent reason why influence over appointments of judges by one institution would be preferable over the other.
Read more about the constitutional ping pong that is the history of the debate on judicial appointments in India here.
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)
The debate about who should appoint judges to the higher judiciary is back on the table. The independence of the judiciary is a key question in our democracy and I think it was the Union Minister of Law and Justice, Kapil Sibal, who put it back there. The Hindu quotes him arguing for a voice for the executive in the appointment of judges.
This elicited some response from the Bar. Anil Divan, the President of the Bar Association of India, criticised the secrecy surrounding the Judicial Appointments Commission Bill and argued that Mr. Sibal’s proposal sought to recapture the executive’s primacy in judicial appointments.
The Bar Council of India also wanted in.
“… the BCI as well as state bar councils are also feeling that in the matter of appointments of High Court and SC judges, the bars should also have a say and the concerned bar should also be taken into confidence before the recommendations of names for the appointments.”
So it is not the best piece of drafting, but it is quite clear that the Bar Council of India was angling for representation on the proposed National Judicial Commission.
National Judicial Commission?
We’ll get there soon.
Okay, what’s the “collegium system”?
All appointments to the higher judiciary are made by the President of India. The President and the Union executive that the President’s office represents however, have almost no say in these appointments. The choice is made by a collegium of the most senior judges headed by the Chief Justice of India. If the appointment has to be made to a particular High Court, then senior judges of that High Court are also represented in the collegium.
Once this collegium recommends a name to the President of India, the appointment has to be made. The only influence that the executive of the Union or any of the states can bring to bear on the appointments process is by forwarding material relevant to the choice of a potential judge to the collegium. The collegium however, need not pay heed to the executive.
Woah! That sounds an awful lot like judges appointing judges. How did that happen?
During the last two decades of the previous century, the Indian judiciary appropriated for itself the right to appoint judges to the higher judiciary.
See the following extract from Article 124 of the Constitution of India.
“Every Judge 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 the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:”
On a plain reading of this provision, the power to appoint judges to the Supreme Court of India is clearly vested in the President of India. After the third judgment in 1998 however, this provision and Article 217, which deals with the appointment of judges to the High Courts, had been interpreted by the Supreme Court of India to mean the collegium system.
While it was the culmination of the judiciary’s assertion of independence after some of the excesses of Indira Gandhi’s regime, the use of the collegium system to appoint judges has coincided with a period of increased focus on corruption and the lack of transparency in the judiciary. Mr. Diwan’s column provides more historical context to the current debate.
Leaving aside questions about exceeding the judicial brief, what is the alternative to the “collegium system”?
You can watch Mumbai-based Senior Advocate Iqbal Chagla endorse the National Judicial Commission proposal in this video. His argument is that the collegium system places too much faith in the individuals at the top of the judiciary. Justice Krishna Iyer calls the system “outrageous” here because of the scope it allows for favouritsm and its lack of emphasis on a thorough investigation into the antecedents and social philosophy of a judge. The former Chief Justice of India, P.N. Bhagwati, says here, that he is opposed to the collegium system because it often leads to bargaining.
According to the NCRWC, the National Judicial Commission would have the Chief Justice of India as its Chairman and two of the senior most judges of the Supreme Court, the Union Minister for Law and Justice, and an eminent person appointed by the President after consulting with the Chief Justice of India, as its Members.
Are there other opinions about the constitution of the National Judicial Commission?
In the video linked above, Mr. Chagla acknowledged the “vexed” nature of the question about what the constitution of the National Judicial Commission should be, but suggested that it should comprise the Chief Justice of India, the Chief Justice of any other court, eminent lawyers, the Leader of the House, and the Leader of the Opposition. The latest missives from Mr. Sibal and the Bar Council of India argue for representation from the Union executive and the relevant Bar in the National Judicial Commission.
There is another opinion though, and Mr. Chagla refers to it later in the video — that the question of who will be part of the National Judicial Commission is not as important as accepting the principle of it. I think Sriram Panchu expressed it best.
“But the important thing is not the composition of the Commission. As important as it is, it is also the processes being followed. Today, I put my faith more in processes than in people.”