NJAC judgment

Supreme Court Advocates-on-Record -

Association and another … Petitioner(s)

versus

Union of India … Respondent(s)

Judicial pronouncements

103. The question of the appointment of judges (mainly of the High Courts) came up for consideration in this Court on three occasions. The decision rendered in each of these cases is not only of considerable importance but also indicates the complexity in the appointment of judges and the struggle by the Bar to maintain the independence of the judiciary from executive interference and encroachment. These three cases are referred to as the First Judges case,[264] the Second Judges case[265] and the Third Judges case.[266] There have been other significant pronouncements on the subject and they will be considered at the appropriate stage.

2 First judges case – 30.12.1981

104. The First Judges case is important for several reasons, but I am concerned with a few of them. These are: (1) The independence of the judiciary was held to be a part of the basic feature of the Constitution.[267] This was the first judgment to so hold. (2) The appointment of a judge is serious business and is recognized as a very vital component of the independence of the judiciary. ‘What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India.’[268] Justice Venkataramiah, however, was of the view that the independence of the judiciary is relatable only to post- appointment and that ‘It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge.’[269] (3) In the appointment of a judge of the Supreme Court or the High Court, the word ‘consultation’ occurring in Article 124(2) and in Article 217(1) of the Constitution does not mean ‘concurrence’.[270] However, for the purposes of consultation, each constitutional functionary must have full and identical facts relating to the appointment of a judge and the consultation should be based on this identical material.[271] (4) In the event of a disagreement between the constitutional functionaries required to be consulted in the appointment of a judge, the Union Government would decide whose opinion should be accepted and whether an appointment should be made or not. In such an event, the opinion of the Chief Justice of India has no primacy.[272] The ‘ultimate power’ of appointment of judges to the superior Courts rests with the Union Government.[273] (This is completely contrary to the view of the Constituent Assembly and Dr. Ambedkar).

(5) The extant system of appointment of judges is not an ideal system of appointment. The idea of a consultative panel (called a collegium or Judicial Commission) was floated as a replacement. This body