In this blogpost, Haridya Iyengar, a student of IIIrd year, Jindal Global Law School, makes a critical analysis of the NJAC Judgment and the need to introduce a more transparent system unlike the collegiums system which has its own flaws.
There was recently a landmark judgement which declared the National Judicial Appointment Commission unconstitutional. I will approach two aspects with regards to this judgement. First, whether the collegium system will be revived? Second, whether the NJAC violates the basic structure of the constitution?
Doctrine of Revival
When an ordinary statute is repealed, it means that the statute never existed in the first place. Therefore, when an amendment is struck down it does not revive the pre-amendment version of the act. However, there are three exceptions to this rule which are collectively known as the “doctrine of revival”.
The first exception is when an act is struck down due to legislative incompetence. An act is said to lack legislative competence when it is not within the purview of the constitutional framework. In such instances, the amending act is considered to be “still born” or not to have come into existence.
The second exception is when an act violates fundamental rights under the Constitution.
The third exception is when an amendment is struck down because it violates the basic structure of the Constitution. This exception was first seen in the Keshavananda Bharati case. The Supreme Court held that the Parliament is barred by Article 368 of the Constitution from altering the basic structure and framework of the Constitution. Therefore even if an amendment act violates the basic structure of the constitution and not just a specific provision, it will be held to have never come into existence.
The court held that the NJAC violates the basic structure of the Constitution so, Article 124 as it stood prior to the amendment will be restored. In Keshavananda Bharati case, it was held that if a constitutional amendment is invalid, then the pre-amendment provision would revive.
Key Holdings in the Judgement
The key holding of the majority are – First, judicial appointment is the basic facet of judicial independence which is a part of the basic structure. Second, judicial primacy during the selection process is also a part of the basic structure. Third, the collegium allows for executive participation while maintaining judicial primacy through the collegium. Finally, the NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.
It also held that judicial independence can only be achieved when there are institutional safeguards to limit outside influence. This was due to the discomfort the court felt with political appointees charged with the task of appointing ‘committed’ judges. There was also the concern that the statute stipulated there would be no recommendation if any two persons disagreed with the appointment. However, the court did make it clear that while judicial primacy and judicial independence are vital in the appointment process, the collegium system is not. Therefore, another system can be placed as long as it complies with the principles set out in the judgement. The majority also mentioned how the civil society can be included in the appointment procedure through a non-binding consultation procedure.
Justice Khehar described the collegium system of appointment as an unhealthy practice. The dissenting opinion suggested presenting a list of candidates for each of the two nominees to a vote of the judges in the Supreme Court. This was to prevent a bipartisan compromise between the political parties.
It has been argued that NJAC does not affect the independence of the judiciary. It must be noted that the judgement never explained why judges controlling the judicial appointment is a necessary component of judicial independence. Furthermore, the court assumes that judicial appointment affects judicial independence. This assumption rests on a narrow definition of judicial independence.
In other democracies, political figures control judicial independence with no detriment to judicial independence. In the United Kingdom, the President and the Deputy President sit on behalf of the Supreme Court, but the Lord Chancellor must approve any candidate recommended by the commission. In the United States, federal judges are appointed by the President with the consultation of the Senate. In Canada, the Governor-General is empowered by the Constitution with consultation from the Privy Council. In South Africa, the Judicial Service Commission recommends judicial nominees for the President who, after consultation with the Chief Justice makes the final appointment. This shows that none of these countries feel that the collegium system is essential to have an independent judiciary. They strike a balance between the legislative, executive and judicial branch during the selection process. The court held that judicial independence can only be achieved without outside influences. However, judicial independence is more likely to emerge when there is a consultative process of selection. Since this involves different and many times competing institutional interests.
There is also an issue of the definition of “independence of judiciary”, taken by the court in the NJAC judgement. The definition does not take into account the external pressure and bias after judges have been selected. So, even the most robust judicial selection process will not guarantee impartial judgement when deciding a case. It makes little difference whether the NJAC or the collegium system selects judges if they lack the temperament to issue impartial and legally sound decisions.
The biggest issue in this judgement is that the Supreme Court casts aside the standard process of constitutional review. The court usually follows three stage process – First stage, it decides whether or not a law is valid when ordinarily interpreted. Second stage, it considers whether it can be interpreted in compliance with constitutional requirements. This is to give the court flexibility of protecting the Constitution while limiting the exercise of democratic power as little as possible. Third stage, if the law cannot be so interpreted, it is struck down. However, in the present judgement the court jumped directly from the first stage to the last. The court could have tackled many concerns if it had proceeded to the second stage. For instance, it could read down the veto power to apply only to judges of the NJAC. It could have also conferred veto power on the Chief Justice while appointing an ‘eminent person’. However, the court failed to do so.
The Supreme Court, therefore, needs to move beyond the institutional formulation of judicial independence. It should focus on creating a well-qualified pool of judges who will produce independent judgements regardless of the selection procedure.
 Rehan Abeyratne, Judicial Supremacy, not Independence, Upheld in NJAC Judgment, Int’l J. Const. L. Blog, Oct. 23, 2015, at: http://www.iconnectblog.com/2015/10/judicial-supremacy-not-independence-upheld-in-njac-judgment
 Chintan Chandrachud, Collaboration, Not Confrontation: The Indian Supreme Court on Judicial Appointments, Int’l J. Const. L. Blog, Oct. 16, 2015, at: http://www.iconnectblog.com/2015/10/collaboration-not-confrontation-the-indian-supreme-court-on-judicial-appointments