Judgement Briefs

Constitutional Law

Supreme Court Advocates-on-Record Association v. Union of India

(2016) 5 SCC 1

Citation
(2016) 5 SCC 1
Court
Supreme Court of India
Date
16 October 2015
Bench
J.S. Khehar; J. Chelameswar; Madan B. Lokur; Kurian Joseph; Adarsh Kumar Goel

Facts

  • The collegium system gave the judiciary a controlling role in appointments to the Supreme Court and High Courts.
  • Parliament enacted the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014.
  • The amendments replaced the collegium with a six-member NJAC consisting of:
  • the Chief Justice of India;
  • the two senior-most Supreme Court judges;
  • the Union Law Minister; and
  • two eminent persons.
  • The eminent persons were to be selected by a committee comprising the Prime Minister, Chief Justice of India and Leader of Opposition.
  • Any two members of the NJAC could block a recommendation.
  • Advocates and legal organisations challenged the scheme as violating judicial independence.
  • The Union defended it as a more transparent and accountable alternative to the collegium.

Issue

  • Whether judicial independence forms part of the basic structure.
  • Whether judicial primacy in appointments is constitutionally essential.
  • Whether executive and non-judicial participation in the NJAC damaged independence.
  • Whether the Ninety-Ninth Amendment and NJAC Act were valid.
  • Whether the collegium would revive if the new scheme failed.

Rule

  • Independence of the judiciary is part of the Constitution’s basic structure.
  • Judicial appointments must be protected against political or executive domination.
  • Parliament may reform the appointment process but cannot create a structure that damages judicial independence.
  • The judiciary need not possess exclusive power in every procedural detail.
  • However, its institutional primacy was treated by the majority as an essential safeguard in appointments.
  • A constitutional amendment failing the basic-structure test is invalid despite having followed Article 368’s formal procedure.

Application

  • Majority
  • The majority focused upon the structure and voting rules of the NJAC.
  • The Union Law Minister directly represented the executive, which was frequently a litigant before constitutional courts.
  • The qualifications and selection standards for the two eminent persons were insufficiently defined.
  • The two-member veto meant that:
  • the Law Minister and one eminent person; or
  • the two eminent persons together could block a candidate supported by all three judges.
  • Judicial members therefore did not possess effective primacy.
  • The majority considered that this exposed appointments to political influence and bargaining.
  • Accountability and transparency were legitimate objectives, but they could not be achieved through a system weakening judicial independence.
  • The majority acknowledged serious deficiencies in the collegium and later invited suggestions for its improvement.
  • Those weaknesses did not make an unconstitutional alternative valid.
  • Dissent of Justice Chelameswar
  • Justice Chelameswar regarded the collegium as lacking transparency, objective standards and public accountability.
  • He rejected the assumption that participation by the executive or civil society necessarily destroyed independence.
  • In his view, judicial independence did not require exclusive judicial control over appointments.
  • He would therefore have upheld the NJAC framework.

Conclusion

  • By a 4:1 majority, the Ninety-Ninth Amendment and the NJAC Act were struck down.
  • The NJAC damaged judicial independence, an essential part of the basic structure.
  • The collegium system automatically revived.