CASE- SC ADV. ON RECORD
ASSOCIATION v. UOI, 2015 (11) SCALE 1
INTRODUCTION
The
Constitution[1]
of India was adopted by the constituent assembly on 26 November, 1949 and
became effective two months later. It is considered to be the Supreme Law of
India and parent of the Parliament of India. Constitution gives the SC of India
a significant duty to protect and guard its basic structure and even the
fundamental rights enacted within it. The basic structure of Constitution was
discussed by the SC in the landmark case of Kesavananda Bharti v. State of
Kerala[2] in
this case the court stated that the Parliament has limited amending power which
must not contradict with the basic structure of the Constitution. Judiciary
holds a special position in our country and is divided into three parts i.e.
The Union Judiciary, The HCs in the State and Subordinate Courts. The first two
is referred as higher judiciary. The Constitution of India talks about the
Union Judiciary in its Chapter IV of Part 5 whereas about the HCs in Chapter V
of Part VI. The SC after its enactment and no. of judgments passed on various
categories of cases has developed and amended its own system of appointment,
transfer and removal of judges and this procedure is neither given in any
provision of the Constitution or any Act of Parliament. A collegium has been
evolved which consists of CJI as its head and four other senior most judges of
SC, similarly there is one for each HC in India whose recommendation will be
approved by the SC collegium. The judges are appointed to SC under Art.124 of
the Constitution whereas to the HCs it is done under Art.217. The transfer of
judges from one HC to another HC is done with the provision given under Art.222
of the Constitution. Judges to the higher judiciary are appointed only by the
collegium and Parliament has no role to play in it, though it can ask for the clarifications
about the appointment but still the decision of the collegium prevails under
the Constitution. The present case for the assignment is also referred as “4th
Judges Case” after the Parliament passes NJAC Act, 2014 through Constitutional
99th Amendment Act, 2014 with intention to replace the collegium system of the
judiciary. There was no. of petitions filed against the validity of the 99th
Constitutional Amendment act along with NJAC Act as it allows the executive a
major role in the appointment of Judges to the higher judiciary. However the SC
struck down the Act as the separation of powers and independence nature of
judiciary is the basic structure of Constitution. Let us see the issue more in
detail.
BACKGROUND OF THE CASE
The present issue is linked with the
appointment of judges to the higher judiciary and the role of executive and
judiciary in it. There are three more cases known as 3 Judges Cases before the
NJAC Act enacted which is related to the present case. They explain the issues
related primacy of CJI’s decision and collegium’s role in accordance with
provisions of Constitution in the appointment & transfer of judges. The
first case which came before the SC was S.P Gupta v. Union of India[3] in
this the issue was raised regarding the validity of central government’s
decision of non-appointment of two judges recommended by the CJI. The court
held that the opinion of CJI doesn’t hold primacy and the government is not
required to act according to that opinion and the recommendation of the CJI can
be refused for ‘cogent reasons.’ The reasoning that the SC gave behind the
judgment was that the executives are accountable to the public which is not in
the case of judiciary. This case is also known as 1st Judges Case.
The next case was SC Adv-on Record Association
v. Union of India[4]
also known as 2nd Judges Case in which again the matter of primacy of CJI’s
opinion was raised. The 9 Judges bench of the apex court ruled in the favor of
judiciary and overruled the judgment of 1st Judges Case. The court stated that
in the case of contradiction develops b/w the judiciary and executive in
consulting the appointment of judges the primacy will be given to the opinion
of CJI. The judgment leads to evolution of collegium system for the appointment
of judges to the higher judiciary. The 3 rd Judges Case[5]
also known as In Re Special Reference No. 1 of 1988 was a mere opinion
supporting the 2nd Judges Case after the then President of India raised
questions on collegium system. The collegium system continued to be used for
the purpose it was evolved though the controversy for changing the same
happened year to year. After 25 years of various unsuccessful attempts to
replace the collegium system it was finally in Dec 31st 2014 when the
Parliament through 121st Constitutional Amendment Bill enacted NJAC Act. Now
let us understand the facts of the matter due to which such a controversy has
reached to this court.
FACTUAL SITUATION OF
THE CASE
The facts of the case are as follows:-
· As
we discussed the background of the issue, subsequent to this in 2013 the UPA government
presented 120th Constitutional Amendment Bill. The bill talks about a 6 member
Judicial Appointments Commission with the objective to give equal representation
to both judicial & non-judicial members and primacy to none. Following
this, the President gave his assent to 121st Constitutional Amendment Bill,
2014 instituted by the NDA government This leads to the introduction of NJAC in
place of collegium system for the judicial appointments. The government
supported this Act by stating that they want to make the system of appointments
more transparent.
· This
2014 Act inserted Art.124A, 124B & 124C in the Chapter IV of Part 5 of the
Constitution. It even brought the amendments in the Art.124 & 217 of the
Constitution. These insertion and amendments led to diminish the role of
judiciary and CJI in the appointments and transfer of judges in the higher
judiciary.
· The
NJAC consists of CJI, next 2 senior most judges of SC, Union Minister of Law
& Justice and 2 people of significance to be chosen by a committee
consisting of Prime Minister of India, CJI & Leader of Opposition.
· After the no. of petitions filed by various
group of lawyers the case came before a 5 Judge Constitution Bench of SC where
the respondents opposed the presence of one judge who was the member of
collegium and hence there would be a conflict of interest. Though the
respective judge doesn’t accepted the recusal as it was against his oath of office,
unless justified.
ISSUES RAISED
The
issues that were raised before the Constitution Bench of the SC are as
follows:-
· Whether
the 99th Constitutional Amendment Act, 2014 & NJAC Act, 2014 were
constitutionally valid or not?
· Whether the above mentioned Acts were
violative of the Directive Principles i.e. “Principles of Separation of Powers”
which is the basic structure of our Constitution?
CONTENTIONS FROM SIDE
OF PETITIONERS
The petitioners’ side mainly advanced the
following arguments:-
· The
petitioner side argued that the ‘independence of judiciary & separation of
powers’ is a principal aspect of Constitution which is compromised due to the
censured 99th Constitutional Amendment Act, 2014. Further they added that the
amendment made under Art.368 of the constitution is not a plenary power and
hence amending the above stated subject matters which are one of the basic
structures of the Constitution must be considered unconstitutional.
· They
based their contentions on the Second & Third Judges Case as they consider
the responsibility of judicial appointments a significant legal obligation
which they can’t share either with executives or legislatures.
· They
are not satisfied with the present situations as the implemented NJAC Act
doesn’t give any exposure of reasons why the collegium system of judicial
appointment is unworthy. The only intention the Amendment & NJAC Act holds
is to diminish the primacy in the judicial appointments system that is vested
with CJI and judiciary under Art.124 & 217.
· Likely
they submitted that till the time both the Acts are in force, the supremacy
& autonomy of the judiciary will be under threat.
CONTENTIONS FROM SIDE
OF RESPONDENT
The
learned Attorney General of India Mr. Mukul Rohatgi mainly advanced the following
arguments from the side of respondent:-
· The
respondent side argued that initially and originally there was a no mention in
the constitution that the appointments and transfer of judges in the higher
judiciary will be done by the judicial system.
· They
based their arguments by relying on the First Judges Case as the sole purpose
of the Amendment Act, 2014 & NJAC Act is to build transparency &
fairness in the judicial appointments system. It is enacted with the purpose of
removing obscurity from the collegium system.
· They
further argued that the interpretation in the First Judges Case was rightly
done because government needs to fulfill its responsibility of accountability
towards the public who have a right to know and hence NJAC comes under the scope
of RTI Act.
· It
was also contended on behalf of respondent that the validity of decisions taken
in the Second & Third Judges Case needs to be reviewed from new aspect and
the present Act of 2014 & NJAC Act is in accordance to the basic structure
of Constitution.
JUDGEMENT
RATIO
DECIDENDI- The court gave the following reason to support its decision on
the present matter. The 5 judge Constitution Bench carved out and mentioned all
those subject matters that could be the part of basic structure of our
Constitution such as ‘secularism’, ‘democratic form of government’, separation
of powers, independence of judiciary and many more as mentioned in the
Constitution.
The
ground base for the present judgment is made after interpreting Art.12, 36, 50,
124, 217 and 222 as it is not easy to interpret them at one go. The bench has
considered the viewpoints and reasoning of various legal authorities on the
collegium system. The bench recommends the following to the collegium
system:-
· The
decision taken by CJI should not be in contrary to the majority decision of the
collegium.
· Government
of India shall develop a Memorandum of Procedure (MoP) after consulting with
the CJI for the appointments of judges.
· The
MoP must consists of:-
1. Age restriction for the SC & HC
selection.
2. The eligibility required for the nomination
should be uploaded on court’s and Departmement of Justice of Government of
India website.
3.
Institution of a secretariat for the management of collegium and the collegium
decisions must be registered following the transparency aspect.
OBITER DICTA-
The bench expressed an opinion in relation to the contention of the respondent
that the public has right to know which is the purpose of the NJAC Act. The
bench said that “right to know is not a fundamental right but at best washed in
a dhobi-ghat. It is implicit in nature which interferes with another implicit
fundamental right of people i.e. right to privacy. We understand the motive of
the respondent but the 99th Constitutional Amendment Act & NJAC Act of 2014
didn’t made an effort to balance the above two implicit rights.”
DECISION-
The Constitution bench with a majority of 4:1 spoke the decision in the favor
of petitioners’ side. All the five judges expressed the decision separately
with the majority consisting of Justice Jagdish Singh Kehar, Madan B. Lokur,
Adarsh Kumar Goel & Kurian Joseph whereas Justice J. Chelameswar’s decision
was in contrast to the majority.
The
majority decided that the primacy & independence of judiciary and its
separation from executives infringes with the inclusion of executives in the
appointments & transfer of judges and hence it violates the basic structure
of Constitution. The majority stated the 2014 Constitutional Amendment Act
(99th) as void and contrary to the Constitution. Even the NJAC Act, 2014 was
found as invalid and unconstitutional. It also rebuked the plea of the
respondent to refer the Second & Third Judges Case to a larger bench for
reconsideration. It allowed the collegium system to remain in operation and
followed for the purpose of all types of appointments and transfers of judges
to the higher judiciary with recommendations for developing more transparency.
Further
the majority bench concluded that the 99th Constitutional Amendment Act &
NJAC Act of 2014 lacks the significance of privacy concerns of the judges to be
appointed. It revoked the contention of the respondent about the transparency
& confidentiality of the appointments to be considered under RTI as a
fundamental right to know by the public because it infringes other persons
right to privacy which is his fundamental right. Hence both the Acts needs to
equally balance both implicit fundamental rights.
Justice
Chelameswar who gave the dissenting judgment from the majority supported the
NJAC Act, 2014. He stated that NJAC isn’t unconstitutional as it holds a way to
bring transparency & accountability in the nomination procedures which the
collegium system lacks. Accordingly to his opinion though independence of judiciary
and its separated powers from the executives forms the basic structure of the
Constitution but it not only based upon with whom does the supremacy rests for
the appointments of judges as there are other factors which forms an effective
and independent judiciary.
SIGNIFICANCE OF THE
JUDGMENT
The judgment given in the favor of the
judiciary is very significant with respect to the Constitution and its basic
structure. The bench holding the NJAC Act and 99th Amendment Act of 2014 as
unconstitutional thus gives the primacy to the judiciary for the appointments
matter because this not only in the respect of constitutional requirement but
also necessary for respecting the basic structure of our Constitution which is
not amendable. The judgment also solves the long time controversy related with
whom the primacy should rest. The decision of the court protects the
independence of judiciary and even the general interests of the public as it
suggests the recommendations in the collegium system which needs to scrutinize
properly to be more transparent and efficient.
REFERENCES
· INDIAN
LAW PORTAL,
https://indianlawportal.co.in/supreme-court-advocates-onrecord-association-v-union-of-india/
(last visited Dec 1, 2021).
· INDIAN
KANOON, https://indiankanoon.org/doc/66970168/ (last visited Dec 1, 2021).
· LTJ,
https://lawtimesjournal.in/supreme-court-advocates-on-record-association-vsunion-of-india/
(last visited Dec 2, 2021.)
· VIDHI
CENTRE FOR LEGAL POLICY, https://medium.com/legis-sententia/supremecourt-advocates-on-record-association-v-union-of-india-case-note-de37a6495887
(last visited Dec 2, 2021).
· CENTER
FOR COMMUNICATION GOVERNANCE,https://privacylibrary.ccgnlud.org/case/supreme-court-advocates-on-record-assn-vsunion-of-india
(last visited Dec 3, 2021)
[1] Const. of India, 1950
[2] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
[3] S.P Gupta v. Union of India, AIR
1982 SC 149.
[4] SC Adv-on Record Association v.
Union of India, AIR 1994 SC 868.
[5] In Re Special Reference No. 1 of
1988, AIR 1999 SC 1.
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