Case Comment: Fourth Judges Case: Supreme Court Advocates-on-Record Association

and Anr. v. Union of India [(2016) 5 SCC 1]

I. Introduction
The judgement pronounced by Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice
Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel in ratio 4:1, in the
case of Supreme Court Advocates-on-Record Association and Anr. v. Union of India 1 not
only struck down the National Judicial Appointments Commission Act, 2014 (hereinafter
referred to as NJAC), it also went into details and discussed the doctrine of Separation of
Powers. Prior to this, the court reviewed the collegium system in the years 1981, 1993 and
1998. It was only in the year 2014 that Parliament had come up with the idea of constituting a
commission for the purpose of conducting judicial appointments which led to widespread
criticism and the constitutional bench was set up to decide this very matter. The court in the
instant case observed that “the independence of the judiciary took up so much discussion
time of several Committees, the Constituent Assembly and various other bodies and
institutions. Several legal luminaries have also devoted considerable effort and given a
thoughtful study to the independence of the judiciary. There was a purpose to it, namely,
that the independence should not be subverted via external or internal pressures. Through
the medium of the 99th Constitution Amendment Act and the NJAC Act, this
independence is subtly put to jeopardy. The President has virtually no role to play in the
appointment of judges, the Chief Justice of India is side-lined in the process and a system
that is subject to possible erosion is put in place.”

Thus, this research would delve into the reasoning provided by the Supreme Court with
respect to the role of NJAC in deciding the appointment of the judges and analyze the need
for making them unconstitutional as laid down by the honorable court in the instant case.

II. Background
The case arose as a result of the Constitution (Ninety-Ninth Amendment) Act, 2014
(hereinafter referred to as the 99th amendment, which substituted the system of collegium
with the NJAC and the reason for doing so was to address the concerns raised for the
appointment of judges lacking transparency as well as accountability. Under the new system,
the Chief Justice of India (CJI) had been made the Ex Officio Chairman, with two members
(ex officio) being the Senior Judges of the Hon’ble Supreme Court who were next to the CJI.

1
(2016) 5 SCC 1.
The inclusion of member which generated most of the criticism was the Union Minister in
charge of Law and Justice along with two other eminent persons who had to be nominated by
a committee that comprised of the legislative head of the government, i.e. the Prime Minister,
CJI and the Opposition Leader (Largest opposition party’s leader in case of no Leader of
Opposition being present). This clearly involved interference in the powers of judiciary by
the legislature. In furtherance of the same, the case has been brought before the Supreme
Court to decide upon the constitutionality of the NJAC Act.

III. Analysis: Constitutionality of NJAC Act and the Basic Structure Doctrine
(i) Basic Structure and Independence of Judiciary
The landmark judgement of Kesavananda Bharati v. State of Kerala2 upheld the doctrine of
basic structure which states that while the Constitution itself has granted the power to amend,
however the same cannot be exercised in the case when such an amendment ‘destroys, alters
or abrogates’ the basic structure and as a consequence of this, the particular amendment
would be struck down for it being unconstitutional.

In another case of P. Sambamurthy v. State of Andhra Pradesh3, the matter came up before
the court with regards to the veto done by the State Government on the order of the
Administrative Tribunal. Under such circumstances, Justice Bhagwati very precisely
observed this in the light of rule of law and stated that such power of state government would
‘sound the death knell’ of this very principle of rule of law which would essentially form a
part of the basic structure of the constitution.4 In the instant case too, the inclusion of
legislative heads in the process of judicial appointments results in non-compliance of the
Separation of Powers (SOP) doctrine which too forms a part of the basic structure of the
Constitution. The doctrine of SOP which is practised in India, allows for one organ to keep a
check upon the other by various measures however, it has to be ensured that the same does
not lead to encroachment and in the instant case, the latter seems to have occurred.

(ii) Appointment of two eminent persons as Members

As observed earlier, the criticism was essentially due to the fact regarding the appointment of
the two eminent persons. It would not be wrong to say that the appointment cannot be called
prima facie arbitrary, but the fact that there was ambiguity as to their selection and

2
AIR 1973 SC 1461.
3
(1987) 1 SCC 362.
4
C. Chandrachud, Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in
India, IUS GENTIUM: COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE, pp. 149-168, (2018).
appointment which would eventually mean the interference and the encroachment of judicial
power by the executive and the legislature which would further raise a doubt on the
independence of the judiciary. The Supreme Court has time and again reiterated on the
principle of independence of judiciary as the latter is given the power and responsibility to
uphold the rule of law and protect the fundamental rights guaranteed by the Constitution to its
citizens. Therefore, it is very important for having a fair democracy that the judiciary is made
independent and the same has been observed in the case of A.C. Thalwal v. High Court of
Himachal Pradesh5.

(iii) Veto Power

In addition to this, another criticism came upon the matter of granting the veto power to two
members of NJAC, i.e. the selection of any judge can be rejected through the process of veto
by any two members of the commission. The fact that power to veto is not in itself arbitrary
but as taken into consideration earlier, there is no standard or procedure with regards to how
such veto power is to be exercised and the absence of which would result in ‘constitutional
crisis’ and in some cases, no appointment at all.

Taking into consideration the above circumstances, the court observed that the 99 th
amendment is unconstitutional and void as it is ultra vires the constitutional provisions as it
violates the separation of powers doctrine by allowing the legislature and executive to
interfere in the process of making judicial appointments as well as affects the basic structure
of the constitution which also calls for the independence of judiciary. It was even during the
Constituent Assembly debates that the ‘consultative process’ has been deliberated upon and it
has been observed that such process has to take a “middle course” in order to avoid the
interference of the legislature as well as the executive.

In contrast to this, Justice Chelameswar in his dissenting opinion addressed the lacuna in the
current system of appointment of judges in the absence of NJAC and observed that “the
consultation between the Chief Justice of India and the Government, and the record of the
consultation process is one of the best guarded secrets of this country,”. Furthermore, it
would be equally pertinent to observe that the prior system too had its own shortcomings
when it comes to appointment of judges on the basis of nepotism, lack of accountability and
transparency and lobbying to name a few.6 Thus, the NJAC can be viewed from yet another
5
(2000) 7 SCC 1.
6
Samanwaya Rautray, “Judicial Secret Out in Open: Former Judges Skewers Appointment Process”,
TELEGRAPH (November 11, 2011), available at https://www.telegraphindia.com/india/judicial-secret-out-in-
open-former-judge-skewers-appointment-process/cid/324284.
perspective of striving to achieve transparency in the process, however for the purpose of the
same, the constitutional principles cannot be done away with and therefore, the 99 th
amendment was struck down. The amendment though suggested for the introduction of new
appropriate measures too but the same had been described by Justice Bhagwati as “a sacred
ritual whose mystery is confined only to a handful of high priests”.7

IV. Conclusion
It would indeed incorrect to say that the collegium system suffers little to absolutely no
shortcoming when it comes to having a procedure of appointment of judges. Nepotism, i.e.
giving preference to family members or friends is quite common, while other practices
include lobbying, lack of transparency as well as accountability. Thus, it is required that
amendments are made in this direction with a view to make the process of judicial
appointments a transparent one, but in furtherance of the same, it should also be kept in mind
that the principles enshrined in the constitution and the Basic Structure are not affected. The
current amendment i.e. the 99th amendment allows for the direct encroachment upon the
functioning of the judiciary which eventually leads to violation of the Basic structure
doctrine, and hence in the instant case, which is also known as the ‘Fourth Judges Case’, it
was quite reasonable to be struck down.

However, the problem is yet not solved with regards to ensuring accountability and
transparency in the process. For the purpose of the same, post the declaration of the said
amendment unconstitutional, recommendations have been sought to improve the current
collegium system in order to ensure that all the above-mentioned lacuna is filled while
keeping the very spirit of the Constitution intact.

7
Suhrith Parthasarathy, “Collegium and transparency”, THE HINDU (November 01, 2017), available at
https://www.thehindu.com/opinion/lead/collegium-and-transparency/article19956961.ece.