IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association Petitioner

v.

Union of India ... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA

PART III

Contents

F. CONSTITUTIONAL VALIDITY OF THE 99th AMENDMENT IN LIGHT OF THE

PROPOSITIONS ADVANCED ................................................................... 1

I. The lack of an absolute majority of judges on the NJAC cannot be held

violative of the basic structure of the Constitution. In any event, the judiciary

is the single largest organ represented on the NJAC ................................ 1

a. The 99th Amendment sets up the NJAC, a broad-based collegiate body

comprising three judges including the Chief Justice of India as its Chairperson 1

b. The absence of primacy of judicial opinion would not amount to abrogation

of the independence of the judiciary ......................................................................... 2

c. In any event, primacy accorded to judicial opinion by the Second Judges

case was not absolute ................................................................................................... 4

II. The presence of two eminent persons on the NJAC is necessary to

ensure participation of the general public, a key stakeholder of justice in the

appointment process to the higher judiciary and also ensure that the

appointments made reflect sufficient diversity ...................................... 9

a. The infirmity with the term eminent persons as contended by the

petitioners must be of such a nature as to amount to emasculating the

independence of the judiciary thereby abrogating the basic structure of the

Constitution

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b.The presence of two eminent persons serves important and vital purposes in

selecting judges for the higher judiciary .....................................................

III. The presence of the Union Minister for Law and Justice on the NJAC does

not affect the independence of the judiciary ...................................... 26

a. The Law Minister provides information about candidates that is available

only to the Executive .................................................................................................. 26

b. The Executive is a key stakeholder in the justice delivery system for which

it is accountable to Parliament ................................................................................. 29

c. The Law Minister ensures checks and balances in the process of appointing

judges ............................................................................................................................. 31

d. The presence of one member of the executive in a commission of six

members does not affect judicial independence ................................................... 32

e. The arguments of the petitioners on the noxious presence of the Law

Minister are based entirely on presumptions and supposition ............................. 35

IV. The setting up of the NJAC has two key advantages, viz., transparency

and accountability in the matter of appointments ................................ 38

a. Transparency and accountability in the matter of appointment of judges

are essential for the public to repose their confidence in the judiciary ........... 38

b. The setting up of the NJAC for the purpose of appointment of judges has the

advantage of bringing in transparency and accountability in the appointments

process thereby fulfilling the constitutional mandate of the citizens right to

know ............................................................................................................................... 41

V. Section 3 of the 99th Amendment inserting Article 124A(2) does not

abrogate the basic structure of the Constitution .................................. 46

a. Independence of the judiciary does not mean independence from

Parliamentary law ........................................................................................................ 50

b. Parliament has powers to enact laws governing various aspects relating to

the functioning of judiciary ....................................................................................... 53

c. The Parliament has the authority to enact laws laying down the suitability

criteria pertaining to the appointment and selection of judges of the Supreme

Court and High Courts ................................................................................................. 56

G. SUMMARY OF SUBMISSIONS ........................................................... 61

Annexure VII: Extracted Provisions of UK Law..................................................62

Annexure VI: Comparative Chart on Judicial Appointments...................................79

Annexure VIII: List of Acts with Similar Provisions to Article 124A(2) inserted by the 99th Amendment.....................................................................................94

Annexure III: Note on Historical Background on Constitutional Provision pertaining to the Higher Judiciary in India.............................................................................101

Annexure IX: Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts..........................................................178

Annexure X: Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India..............................................198

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F. CONSTITUTIONAL VALIDITY OF THE 99th AMENDMENT IN LIGHT OF THE

PROPOSITIONS ADVANCED

I. The lack of an absolute majority of judges on the NJAC cannot be

held violative of the basic structure of the Constitution. In any event,

the judiciary is the single largest organ represented on the NJAC

a. The 99th Amendment sets up the NJAC, a broad-based collegiate body

comprising three judges including the Chief Justice of India as its

Chairperson

1. The NJAC is a broad-based collegiate body representing key

stakeholders who can contribute fruitfully to the selection of the

best candidates for judicial office. As stated in the Statement of

Objects and Reasons of the 99th Amendment,

The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts.

2. It is also respectfully submitted that a participatory and collective

process has always been envisaged for judicial appointments. In

Subhash Sharma v. Union of India (1991) Supp (1) SCC 574(at p.

597):

42. .The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any power or right to appoint Judges. It is essentially a discharge of a

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constitutional trust of which certain constitutional functionaries are collectively repositories...

3. It is submitted that the NJAC, apart from the Chief Justice of India

and two seniormost puisne judges of the Supreme Court, comprises

one member of the Executive, viz., the Union Minister of Law and

Justice (Law Minister) and two eminent persons. There is no other

representative of the executive apart from the Law Minister. As a

member of the Executive, the Law Minister is intended to provide

information about candidates for judicial office that other

members might not have. The two eminent persons on the

Commission are independent members who are appointed by a

committee consisting of the Prime Minister, the Chief Justice of

India and the Leader of the Opposition in the House of People or

where there is no such Leader of Opposition, then, the Leader of

the single largest Opposition Party in the House of the People. The

eminent persons are truly independent and represent neither the

executive nor the judiciary but rather are intended to infuse an

element of objectivity into the process and maintain checks and

balances.

b. The absence of primacy of judicial opinion would not amount to

abrogation of the independence of the judiciary

4. It is the petitioners contention that the absence of primacy given

to the judiciary in the appointments process and the involvement

of the Executive, through even one member in the NJAC, and the

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presence of eminent persons, would be tantamount to an

abrogation of the independence of the judiciary - a basic feature of

the Constitution. It has already been demonstrated that the

primacy of the judiciary in the matter of appointment of judges to

the higher judiciary, not being a part of the Constitution as

originally enacted and being a method devised by the judiciary to

protect its independence in a particular historical context

(executive overreach) and having a narrow remit (to prevent

stalemate in case of disagreement) cannot be a part of the basic

features of the Constitution. Further, it has also been

demonstrated that primacy has no necessary connection with

judicial independence. Thus, the mere fact that the judiciary does

not have an absolute majority in the NJAC but has three out of six

members belonging to it cannot by itself be considered a violation

of the basic structure of the Constitution.

5. Without prejudice to the above submissions, even in the NJAC, it

must be noted that the judiciary enjoys primacy inasmuch as it

has predominant representation with three judges as opposed to

two eminent persons and one member of the Executive. Further,

two judges who disapprove of a particular candidate can ensure

that such a person is never appointed (owing to the second proviso

to Section 5(2) and Section 6(6) of the NJAC Act). Additionally, the

right to reject a candidate approved by the judges on the NJAC

cannot be exercised by the executive alone but requires at least

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one other member who does not represent the executive i.e. one

eminent person. Thus, seen from this perspective, NJAC tilts the

balance further in favour of the judges and represents a diluted

role for the executive. Thus unless majority of the judges on the

NJAC are in favour of a particular candidate, the appointment of

the candidate will not go through. In light of this, it is respectfully

submitted that judges continue to enjoy considerable preeminence

under the NJAC.

c. In any event, primacy accorded to judicial opinion by the

Second Judges casewas not absolute

6. An important issue that requires consideration is with regard to

appointment of persons whose names are supported by all judges

but who do not have the approval of other members of the NJAC.

In other words, can the judges, who are members of the NJAC have

the right to insist on the appointment of a particular candidate,

when two others express strong reservations against such

candidate? It is respectfully submitted that the concept of primacy,

even as interpreted in the Second Judges case, assuming it is not

to be reconsidered and continues to be applicable, does not take

such an extreme and absolutist view. From the following passages,

it is apparent that such absolutist primacy was not intended under

the Second Judges case. Verma J. observed (at p. 693):

450. .the word consultation instead of concurrence was used, but that was done merely to indicate that absolute discretion was not given to anyone, not even to the Chief Justice

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of India as an individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts.

7. It is further significant that the Second Judges case did not give

the judiciary a carte blanche to appoint judges contrary to the

views of the executive. This is clear from the following passages of

Verma J.s judgment (at pp. 703-705):

478(6). The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appointment recommended by the Chief Justice of India has to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional case, where the facts justify, a recommendee of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter.

It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials.

478(7). Non-appointment of anyone recommended, on the ground of unsuitability, must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his

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recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person, for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.

8. It is clear from the passages above which are reiterated in the

Summary of Conclusions of Verma J. (as he then was), that

although all appointments were to be made with the approval of

the judiciary symbolised by the CJI, the CJI did not have an

untrammeled right to push through an appointment contrary to the

opinion of the executive. Thus primacy of judges as interpreted

in the Second Judges case does not include the right of judges to

insist on the appointment of a particular candidate contrary to the

wishes of the executive. This is further apparent from the

conclusions recorded in the Third Judges case (at p. 772):

44(4). The Chief Justice of India is not entitled to Act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the government of India for non-appointment of a Judge recommended for appointment.

Bharucha J. (as he then was) held (at p. 766):

23. .It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief

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Justice of India for the non-appointment of that person. In such a situation, the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so reconstituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation.

24. The Chief Justice of India may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto. The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation.

It is therefore clear that there was no absolute right given to the

Chief Justice of India to insist upon an appointment in the first

instance.

9. Without prejudice to the above submissions, it is submitted that

the arguments based on the right to primacy of the judiciary are

based on the misconceived notion that all three judges on the NJAC

must speak in one voice and act in unison. This is to suggest that

the three judges will not apply their minds independently or have

different views. The three judges on the NJAC cannot be viewed as

a single voice there is no one voice symbolising the view of the

judiciary in any commission where there is more than one judge.

Each judge is expected to independently apply his or her mind and

express different views and perspectives, thereby adding an

element of plurality to the deliberations. The importance of

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plurality was identified in the Second Judges casein the

following observation of Verma J. (as he then as)(at pp. 707-08):

480.Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias..

Therefore, the question of a collision between the executive and

the judiciary does not and cannot arise as each of the three

judges opinion must be weighed independently. All the members

of the NJAC will partake in a participative exercise,use their own

expertise and have collective consultation so as to choose the most

suitable candidate for the judicial office.

10. In light of the above, it is humbly submitted that:

a. Primacy of the judiciary in appointment cannot be part of the

basic structure of the Constitution;

b. Without prejudice to the above, the lack of absolute majority

of judges in the NJAC is not violative of the basic structure of

the Constitution.

c. In any event, the judiciary is the single largest organ

represented on the NJAC and thus retains preeminence.

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II. The presence of two eminent persons on the NJAC does not affect

the independence of the judiciary; on the contrary it is necessary to

ensure diversity and accountability in appointments

11. It has been contended by the petitioners that the term eminent

persons as contained in sub-clause (d) of clause (1) of Article 124A

introduced by the 99th Amendment is vague and without criteria, and

therefore the requirement to have two eminent persons on the NJAC

should be struck down.

a. The infirmity with the term eminent persons as contended by

the petitioners must be of such a nature as to amount to

emasculating the independence of the judiciary thereby

abrogating the basic structure of the Constitution

12. It is respectfully submitted that merely stating that the power to select

eminent persons is vague does not render the provision

unconstitutional. It has to be shown as to why such vague or uncanalised

power (assuming, without conceding that this exists) violates the basic

structure of the Constitution. As has been held by the Supreme Court,

every violation of Article 14 is not a violation of the basic structure. In

Maharao Sahib Shri Bhim Singhji v. Union of India(1981) 1 SCC 166

Krishna Iyer J. said (at p. 186):

20.Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice

10

13. The burden to demonstrate this infirmity is on the petitioners, till which

time the provision enjoys a presumption of constitutionality.

b. The term eminent persons is neither vague nor uncanalised

14. It is submitted that the term eminent person is in no way vague or

uncanalised. In fact, it has a specific meaning attached to it well

understood in daily usage and the law. As defined in the Oxford English

Dictionary, the term eminent means Distinguished in character or

attainments, or by success in any walk of life.

15. The apparent synonymity of eminent with the term distinguished

led Dr. BR Ambedkar to comment in the Constituent Assembly that he

was unsure about the difference between the two. This is manifested

also in the Constituent Assembly Debates in the context of persons who

could be appointed to the Supreme Court under clause (3) of Article

124. In this respect, reference may be made to Dr. Ambedkars speech,

on 24th May, 1949 (Constituent Assembly Debates, Book 3, Volume VIII,

p. 258) where the meanings of the term distinguished and eminent

in the context of appointment to the Supreme Court were discussed:

Mr. President, Sir. I am prepared to accept two amendments. One of them is No. 1829 moved by Mr. Santhanam, and the other is No. 1845 moved by Mr. Kamath, by which he proposes that even a jurist may be appointed as a Judge of the Supreme Court. But with regard to Mr. Kamaths amendment No. 1845, I should like to make one reservation and it is this. I

11

am not yet determined in my own mind whether the word distinguished is the proper word in the context. It has been suggested to me that the word eminent might be more suitable. But as I said, I am not in a position to make up my mind on this subject; and I would, therefore, like to make this reservation in favour of the Drafting Committee, that the Drafting Committee should be at liberty when it revises the Constitution, to say whether it would accept the word distinguished or substitute eminent or some other suitable word.

16. Eventually, the Drafting Committee used the word distinguished in

what eventually became clause (3) of Article 124 providing for the

appointment of distinguished jurists. It is humbly submitted that

eminent person as a member of the NJAC is analogous to

distinguished jurist which was an eligibility criterion for a judge of the

Supreme Court. The terms are easily interchangeable and much should

not be made about merely semantic arguments of this type. Eminent

has a clear and well-established meaning and cannot be presumed to be

vague and undefined in any manner.

17. A further check against persons with extraneous qualifications being

appointed as eminent persons is provided by the appointment

process of such persons. The appointment of eminent persons is to be

made by a committee comprising the Chief Justice of India, the

Prime Minister, and the Leader of the Opposition in the Lok Sabha or

where there is no Leader, then the leader of the single largest

opposition party in the Lok Sabha. This is a High-Powered Committee

comprising three high functionaries. On the role of such a High-

12

Powered Committee, in Centre for Public Interest Litigation v. Union

of India (2011) 4 SCC 1, Kapadia CJI held (at p. 33):

81.To accept the contentions advanced on behalf of the petitioners would mean conferment of a veto right on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Under the proviso to Section 4(1) Parliament has put its faith in the High-Powered Committee consisting of the Prime Minister, the Minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High-Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High-Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three members, the working of the Act would become unworkable.

18. In the 99th Amendment, the committee, it is submitted, is even more

High-Powered than the Committee being considered by the Supreme

Court in the aforementioned case, with the Home Minister (as is the

case appointment of the Central Vigilance Commissioner) being

substituted by the Chief Justice of India. Further, a random sampling

of 10 Acts out of the 70 that Mr. Arvind Datar, Learned Senior Counsel

presented to Court as having eminent persons do not have any

similar committee for appointment;1 on the contrary in a majority of

1 See, S. 64F, Insurance Act 1938, S. 24, Indian Institutes of Information Technology Act, 2014, S. 12, Rajiv Gandhi National Institute of Youth Development Act, 2012, S. 5 (2)(c)(iii), 6(2)(c)(4) Unorganised Workers Social Security Act, 2008, S. 22(1) Biological Diversity Act, 2002, Schedule 1, Para 22, Jamia Millia Islamia Act, 1988, S. 4 National Institute of

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acts, appointment is made by the Central Government. The

constitution of such a high-powered appointment committee is the

cornerstone to guarding against uncanalised power. Since Parliament

has put its faith in such a Committee, such will should be respected,

especially in view of the fact that a democratic polity is part of the

basic structure of the Constitution.

19. In assessing the constitutionality of the vesting of such power in high

constitutional functionaries, the Court must be cognizant of the stature

of such functionaries. In the Second Judges Case, it was held by Verma

J. (as he then was) at para 477,

477. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned norms emerging from the actual practice and crystallised into conventions - not - exhaustive - are expected to be observed by the functionaries to regulate the exercise of their discretionary power on the matters of appointment and transfers.

20. Furthermore, the principle of constitutional trust should apply to the

High-Powered Committee which must be trusted to select the most

appropriate persons for appointment to judicial office. Especially

given the fact that the committee to select eminent persons

comprises the Chief Justice of India, there is sufficient safeguard to

ensure that only persons who will add value to the process of

Pharmaceutical Education and Research Act, 1998, Schedule 1 of Pondicherry University Act, 1985, S. 4 Jallianwala Bagh Act, 1951.

14

selecting the most appropriate candidates for judicial office will be

selected as eminent persons on the NJAC.

c. The presence of two eminent persons serves important and

vital purposes in selecting judges for the higher judiciary

21. It is respectfully submitted that the presence of eminent persons

serves important and vital purposes in the task of appointment of judges

to the higher judiciary. The 99th Amendment, as evident from its

Statement of Objects and Reasons, envisages a broad-based

appointments commission. The presence of non-judicially trained

members of the public is a key element of such a broad-based method

that serves three distinct purposes promoting public confidence,

adding relevant inputs given the qualities that are required of a judge

and ensuring checks and balances in the process of appointment of

judges.

i. Promoting public confidence in the judiciary

22. The judiciary is an organ of the state that derives its legitimacy from

the people. Thus public confidence in the judiciary is a sine qua non for

judicial functioning. In K. Veeraswami v. Union of India (1991) 3 SCC

655 this Honble Court held as follows (at pp. 705 and 750-751):

53. The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence

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of the public. He must voluntarily withdraw from the judicial work and administration.

122It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made even if sometime a good appointment does not go through.

23. A key element in securing such confidence is the need for diversity in

judicial composition. The importance of diversity was underscored in

the context of judicial appointments in India in Registrar General, High

Court of Madras v. R. Gandhi and Ors. (2014) 11 SCC 547 by Chauhan

J. (at p. 554):

16. Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness.

24. Further, Kate Malleson, an authority on the topic of judicial

appointments in the UK and author of the book, Appointing Judges in

the Age of Judicial Power (pages 7-8) writes,

The second and central and recurring theme evident in the current debate on judicial selection is the growing recognition of the importance of selecting more diverse judiciaries. The lack of women and lawyers from minority ethnic backgrounds on the bench throughout different jurisdictions is one of the greatest challenges facing judiciaries today, and the failure of appointments systems to make significant progress in increasing diversity has been a key factor in many of the changes being

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introduced. In federal and provincial systems, regional representation is an equally important factor. Likewise for international courts the inclusion of judges from different regions or countries covered by their jurisdiction is the foundation upon which the legitimacy rests. The geographical balance of the courts membership is often the most controversial aspect of the appointments precast the international court. For countries in which there are strong religious diversities, such as Israel, the religious backgrounds of judges are equally critical. In many African jurisdictions the question of racial composition is inevitably at the fore. Nor are the categories of representation unchanging or universal. The South African Judicial Services Commission, for example, takes pride in its record of promoting disability equality in its appointments process, whereas another systems the question of disability has barely found its way onto the diversity agenda. The last example provides evidence of the way a comparative review of judicial selection around the world reveals the changing shape of the debate and some possible directions it may take in the future. It also highlights the fact that it is in the newer democracies that some of the innovative policies and practices in this area are found. While mature democracies can generally claim a stronger record in relation to the protection of judicial independence, the weight of tradition and precedent found in those countries has often inhibited the development if reforms to judicial appointments processes that would expand the recruitment pool for judicial office and lead to a more diverse judiciary.

25. This is not to suggest that the collegium of judges is institutionally

incapable or deliberately resistant to promoting diversity in judicial

appointment. However, as Malleson notes,

Their (lay members) function is a vital one in balancing the interests of the legal and judicial members of the commissions and mitigating the danger of cloning which inevitably arises when appointment is made by those already doing the job. 2

2 Ibid.

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When judges have the primary responsibility for appointment of

judges, the House of Lords Select Committee noted, HL Paper 272

(at p. 24):

65. Serving judges best understand the qualities required to fulfil a particular position and are able to provide an informed assessment of an individuals skills and abilities. These factors need to be built into the appointments process, whether through membership of selection panels or through consultation and the provision of references. But the input of the judiciary is one significant factor which risks a candidate being preferred because his or her background, characteristics and manner resemble that of other judges. This could work against attempts to increase diversity.

66. Many of our witnesses argued that having greater lay involvement in the selection process was the most appropriate way of avoiding the problem of self-replication within the judiciary. Whilst some queried whether lay members could properly assess candidates for a judicial role, others stressed that the lay members of the JAC are very powerful people with strong backgrounds in business, politics or what have you who are of extremely high calibre and [who bring] different qualities ... and a broader perspective

(House of Lords Select Committee on the Constitution, 25th

Report of the Session 2010-12 on Judicial Appointments (HL Paper

272, 2012))

26. This is especially important in the context of the fact that independence

of the judiciary requires independence from the class to which judges

belong. In the First Judges Case, Bhagwati J (as he then was) held,

27..[i]t is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It

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has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.

27. Having eminent persons, not connected with the legal profession on the

panel to select judges promotes diversity both intrinsically and

instrumentally. Intrinsically, by very virtue of the fact that they are not

judges or the government officials, they are in a position of

detachment. Lord Brian Gill, Lord President and Lord Justice General

(Scotlands longest serving and senior most Judge) remarks in his recent

speech on Independence of the Judiciary at the 19th Commonwealth Law

Conference, 2015:

Inevitably a process that is administered by the public service will adopt a typically public service appointment model. That may not be the best model for appointments to an office of constitutional significance. We must ensure that the appointments boards include people of significant legal experience, as well as lay membership that will provide a check on the process from a detached standpoint. Lay members from a variety of backgrounds possessing different life experiences can evaluate non-legal competencies from the ordinary citizens perspective. Temperament and commitment are attributes that require no legal skill for their assessment.

Further, the 99th Amendment specifically provides that one

eminent person must be a woman or representative of

Scheduled Castes, Scheduled Tribes, Other Backward Classes or

minorities. Hence their very presence is a sign that the

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judiciary in whose selection they have a role is likewise sensitized

to diverse needs.

28. Instrumentally, eminent persons ensure that members of the public of

all shades, who are the ultimate consumers of justice have greater

confidence that courts will be sensitive to their concerns. This is the

rationale behind lay persons being included as members of the National

Consumer Disputes Redressal Commission (NCDRC). It is significant to

note that the appointment of lay persons has been accepted and upheld

in this context by the Supreme Court despite the office being a quasi-

judicial office. In Indian Medical Association v. V. P. Santha and Ors.,

(1995) 6 SCC 651, a challenge to provisions of the Consumer Protection

Act which provides for the appointment of non-judges was challenged.

The presence of lay persons was justified, placing reliance on a study by

Prof. Robin C A White In the Administration of Justice, 2nd Edn.

34. Discussing the role of lay persons in decision-making,

Professor White has referred to two divergent views. One view

holds that lay adjudicators are superior to professional judges

in the application of general standards of conduct, in their

notions of reasonableness, fairness and good faith and that they

act as an antidote against excessive technicality and some

guarantee that the law does not diverge too far from reality. The

other view, however, is that since they are not experts, lay

20

decision-makers present a very real danger that the dispute may

not be resolved in accordance with the prescribed rules of law and

the adjudication of claims may be based on whether the claimant

is seen as deserving rather than on the legal rules of entitlement.

Professor White has indicated his preference for a tribunal

composed of a lawyer, as Chairman, and two lay members. Such a

tribunal, according to Professor White, would present an

opportunity to develop a model of adjudication that combines the

merits of lay decision-making with legal competence and

participation of lay members would lead to general public

confidence in the fairness of the process and widen the social

experience represented by the decision-makers. Professor White

says that apart from their breadth of experience, the key role of

lay members would be in ensuring that procedures do not become

too full of mystery and ensure that litigants before them are not

reduced to passive spectators in a process designed to resolve

their disputes. (See: Professor Robin C.A. White: The

Administration of Justice, 2nd Edn., p. 345.)

29. The Supreme Court was fully conscious of the fact that the President

of the National Commission may be outvoted by other members being

lay persons who might not have expertise in that specific area. Yet it

upheld the appointment of these lay persons/non judges. (para 33,

21

page 670). Again, in State of Karnataka v. Vishwabharathi Housing

Building Coop. Society and Ors. (2003) 2 SCC 412, the same reasoning

was adopted. It was held that merely because in a given situation the

decision of non-judicial members may override that of the President, a

judicial member, was not sufficient reason to strike down the Act as

unconstitutional. (para 40, page 427).

30. It is of some significance that consumer fora including the National

Commission where sometimes highly technical or commercial disputes

worth tens of crores of rupees may be decided, that too after taking

evidence, have non-judicial members who have no expertise whatsoever

on the legal process, and often no expertise either on the particular

subject before them. Yet, there is no bar on their presence on the

Bench. This demonstrates that their presence is intended to be

representative of the ordinary citizen and to lend him or her some

comfort and assurance that the system of consumer dispute redressal

functions for his or her benefit. Thus, the purpose is to inspire public

confidence in the system and in the access to justice rather than

provide expertise. Similarly it is submitted that for the NJAC the

presence of two eminent persons provides a direct stake for the public

to ensure that persons selected as judges are sensitive to their

interests. If non-judicial members can effectively function and bring

value to the adjudication of technical or commercial disputes, there is

no reason why there can be any objection to the participation of non-

judicial eminent persons on an appointing Commission.

22

31. Such representation to members of the public who are the primary

consumers of justice and in whose interests the Court functions is

particularly crucial in India. This is because the higher judiciary in India

exercises the power of judicial review in a manner largely unparalleled

in the world. From the traditional role of an adjudicator of disputes

whether between private parties/ governments/ municipalities etc., the

Courts have expanded their jurisdiction significantly. The start was the

entertainment of PILs in the 1980s. Bhagwati J. (as he then was) the

pioneer in this regard. Over the last three decades, PILs have been

entertained for and on behalf of weaker sections of society like bonded

labour, child labour, under trial prisoners, etc. Further, PILs in respect

of various technical matters with significant economic implications such

as aspects of environment and forests, mining, coal and telecom

industries, technology, (issues of economy) linking and cleaning of

rivers, the construction and height of dams, hydroelectric projects,

aspects of pollution in cities, etc. have also been entertained. This is

not to criticise the role of the Courts but to show the sweep and the

myriad nature of their adjudicatory functions. It is but obvious that a

judge is not an expert in every field described above. However, it is

important for a judge to be a well-rounded personality with expertise in

some of these subject areas, awareness of contemporary events and

sensitivity to the social and economic impact of issues that arise before

the court. Thus only knowing the letter of law in the current

23

situation is not sufficient. It is in this context that the two eminent

persons will have a unique contribution in selecting the most

appropriate and well-rounded candidates for judicial office, such

persons being persons of distinction in diverse fields not limited to law

providing inputs that other members of the NJAC may not necessarily be

in a position to provide. This is thus necessary to ensure and maintain

public confidence in the justice delivery system.

ii. Relevance of eminent persons in assessing the qualities of judges

32. It is humbly submitted that the qualities of a judge should also be wide-

ranging was recognised in the Indian context by former Chief Justice of

India, Justice RC Lahoti. He identified the following ethical values which

a judge should have:

i. Public Speech: Judges must be cautious of their role and responsibilities while engaging in public speech. Law is supposed to be founded upon morality and judges have to do with making law and its interpretation. Hence, the ethical obligation rests harder upon their shoulders. Judges must constantly be aware of their role and position in society and cannot be frivolous in the use of their words. It need not be stated that the words from a judge whether inside or out of the court room carry far more weightage than an average citizen.

ii. Public Trust: A judge must respect and honour his judicial office. It is an institution of public trust and he must endeavour to leave such office with higher respect and public confidence than when he inherited it. Societal equilibrium and faith in rule of law depends on the strength of the dignity of the judicial office. Judges are after all temporary occupants of an office that existed before us and will continue to exist after our exit.

iii. Family Conduct: Judges are bestowed with the responsibility of judging the conduct of fellow citizens. Therefore it is only natural that they be expected to make

24

truthful decisions in their own lives. If they succumb to making the wrong choices they lose the moral authority to judge the lives of others. Further, Judges are not only held responsible for their own conduct but also for that of their families. Such relationships may sometimes give rise to complex ethical challenges as they may place additional restrictions on the family members of a judge. Therefore, great caution also needs to be exercised by a judge and his family and friends while conducting themselves

iv. Recusal: A judge may often encounter situations where a conflict of interest arises or where there is an apparent conflict of interest which may require him to recuse himself from the matter. Bias is one of the factors that may require recusal. While considering the question of bias a judge may have to evaluate not only whether he would indeed be influenced in his decision but also whether he may be perceived as being biased which may weaken public trust ultimately. Ethical considerations play a decisive role in influencing a judges recusal from a case.

v. Compassion and Conscience: being compassionate as a judge is as indispensable judicial ethic. A judges metamorphosis from a student of law, to a practitioner and later as a judge often desensitizes us to the gravity and the impact of our work on litigants and the general public. We must resist the tendency to treat a case as a routine matter because for the litigant it is often his first brush with the rule of law, after probably having exhausted all his other available options. And the decision of a judge will undoubtedly alter the course of the litigants life. Thus while upholding the rule of law if a judge can award a patient hearing to both the parties and be compassionate in his application of law, it often alleviates their suffering and certainly enhances their respect for the judiciary.

vi. Avoiding Class Bias: The strength of our judiciary also depends on their ability to treat citizens of various religious, social and economic backgrounds without bias or prejudice. A class bias where an individual may be prejudices against another individual not because of who he is but what he is also not uncommon in any society. A judge like any other individual must guard against succumbing to such biases.

vii. Constitutional Values: The creative judges starting point is a belief in a changing or evolving society, in which there is a continuous need for the law to be modified so as to bring it back into touch with social need. He must juxtapose evolving societal needs with our resilient and

25

visionary Constitutional principles which have stood the test of time. Decisions may be reversed by an appellate court, a disadvantage a judge often faces is the lack of feedback on his work. The nature of his work is such that even if he performs his duties to the best of his abilities and follows all procedures and laws he is perhaps going to leave one party less satisfied than the other. Complaints from litigants, praise from lawyers or writings in the press which could go either way are seldom indicators of the quality of our work.

(Justice RC Lahoti, Canons of Judicial Ethics, M. C. Setalvad

Memorial Lecture by Honble Mr. Justice R.C. Lahoti, 22nd February

2005)

33. To assess the abovementioned qualities, an eminent person would bring

in to the appointments process a fresh perspective, higher sensitivity to

the issues of the public, bolster the confidence of the public and bring

in an element of detachment and impartiality to the process. It can be

nobodys case that only judges can assess such qualities. On the

contrary, independent persons of eminence will be best judges of

several such qualities given that their impressions will not be clouded by

the persons knowledge of law as evidenced by his judgments, and will

undertake an assessment of the character of the person based on the

materials placed on record.3

3 It is of some significance that in the UK, even in the designation of Queens Counsels (QCs), lay persons are on the selection panel. The selection panel comprises of a senior judge, senior lawyers (both barristers and solicitors and distinguished lay (not legally qualified) people. In fact, two panel members including one lay person is required to review each application based on the list of important cases, narrative description of practice and self assessment to establish a preliminary view. Only then is the application put before the panel. This process too encourages social diversity.

26

A

34. The presence of eminent persons on the NJAC is justified by the fact that

attributes appropriate for judgeship are not confined to competence in the

law. It must be fairly admitted that Knowledge of the law, record as a judge

are certainly crucial factors in appointment. The Chief Justice of India and

two seniormost puisne judges will naturally have a determinative say in this

matter. The eminent persons would help in ensuring that perspectives of

the citizenry, who are the ultimate consumers of justice, are also

adequately taken into account especially with regard to the other qualities

Justice Lahoti believes are necessary. Lord Gill, Lord President and Lord

Justice General of Scotland (Scotlands longest serving and senior most

Judge) remarked in his recent speech at the 19th Commonwealth Law

Conference, 2015:

Lay members from a variety of backgrounds possessing different life experiences can evaluate non-legal competencies from the ordinary citizens perspective. Temperament and commitment are attributes that require no legal skill for their assessment.

In 48 years in the business of the law I have known judges of outstanding academic brilliance who found it difficult to make a decision for fear of being wrong; or who pursued relentless logic without due regard to common sense. I have known lawyers who

were not forceful pleaders at the Bar yet flourished in the judicial life when they had time for reflection. So when a judicial appointment is made and the profession as always - passes its confident verdict, remember this: you never can tell.

35. It is humbly submitted that eminent persons who would be part of the

NJAC would help to bring such qualities to the table which would be in

addition to a judges role as an adjudicator of disputes. The

B

different interests represented on the NJAC are intended to contribute

different perspectives to the process of selection of judges. Each member

and each bloc will add something new and different and therefore the

apprehension that eminent persons do not have adequate expertise to

assess judicial competence per se is of no relevance. If every member on

the NJAC is expected to contribute on the same facet of suitability of

judicial office, the presence of six members will become pointless. It is the

judicial members who will assess the legal background and competence of

the candidate and will guide the others based on their expertise and

experience. The eminent persons will assess candidates integrity, their

conduct, their ability to be compassionate and particularly ensure the

avoidance of class bias, all of which have been recognised by Justice Lahoti

as key to judicial functioning.

35A. It is humbly submitted that in order to engender public confidence in the

administration of justice, it is necessary for the public to know that their

judges will be adequately sensitive to their interests, including the interests of

sections of society who have been traditionally discriminated against. The

presence of socially diverse persons such as minorities, Scheduled Castes,

Scheduled Tribes, Other Backward Classes or women on the Bench would have

the effect of sensitizing other members of the Bench to the problems faced by

these sections of society.

35B. Eminent persons also introduce an element of impartiality i.e. a

dispassionate approach in the selection process. Their non - involvement

C

in the legal profession, contrary to the misconceived belief of being a

handicap, is actually a strong virtue. Their coming from backgrounds outside

the legal fraternity render them free from the biases, prejudices and

preconceived notions. They stand at an arms-length and therefore introduce a

much needed element of neutrality in the process.

35C. In light of the above, it is humbly submitted that eminent persons are

essential in assessing the relevant qualities in persons who are to be appointed

as judges, qualities which cannot simply be limited to the knowledge of the

law.

iii. The inclusion of eminent persons without any stated criteria was

found sufficient by several previous reform proposals including the

National Commission to Review the Working of the Constitution.

35D. It must be noted that the concept of having eminent persons on the

NJAC is not a novel one. A review of all the past bills and reports would

show that the inclusion of an eminent person in the Judicial Commission in

appointment of judges is a concept of established provenance.

a. The Report of the National Commission to Review the

Working of the Constitution (NCRWC) also known as the

D

Venkatachaliah Committee proposed a five-member selection

commission that consisted of the Chief Justice of India, 2 senior most

judges, the Law Minister and 1 eminent member. The eminent

member was to be appointed by the President in consultation with

the Chief Justice of India. No criteria were prescribed. This

commission has time and again been advocated by the Petitioners, as

being an ideal model. It is not the argument of the Petitioners that

the very presence of an eminent person on the Commission is

indecorous or unconstitutional.

b. The suggestion of the 5-member committee made by the NCRWC was

adopted with modification and proposed in the Constitution

(98th Amendment) Bill, 2003 by the NDA Govt. Here the eminent

person was to be nominated by the President in consultation with the

Prime Minister.

c. The Judicial Appointments Commission Bill, 2013 further expanded

the commission with the inclusion of two eminent members thus

making it a six-member commission, which included the Chief Justice

of India, the 2 senior most judges, the Law Minister and 2 eminent

members.

35E. All these Bills and proposals were taken into account by

Parliament while passing the 99th Amendment. No criteria for

eminent persons were provided in any of these bills. Parliament in

its wisdom felt that its policy of broad-basing the appointments

E

mechanism would be best served by having 2 eminent persons, with one

belonging to women, Scheduled Castes, Scheduled Tribes or Minorities.

Hence the 99th Amendment includes such persons in the NJAC for

appointment of judges to the Supreme Court and High Courts.

35F. Two final points must be noted. First, Mr. Jethmalani had

contended that the presence of the Law Minister might lead to a

situation where the judiciary and the Law Minister might collude to

ensure recommendations of the executive and the judiciary and

therefore the Law Minister ought not to be present on the NJAC. In this

context, the presence of two independent eminent persons who may

have nothing to do with the legal profession will also act as checks and

would remain vigilant against any such attempts. Thus it is the

incorporation of two eminent persons which makes the commission more

than a fully ex officio body, having wide representation, making it

accountable on its own and fulfilling the constitutional mandate of

checks and balances.

35G. Secondly, the eminent persons will be guided by the Chief Justice

of India and the remaining judges who will be best placed to

assess the legal merits of a candidate. As an analogy, the National

Green Tribunal under the Act of 2010 comprises a Chairperson

who is a f ormer judge, judicial members as well as expert

members. The members including expert members are

appointed under the National Green Tribunal ( Manner of

F

Appointment of Judicial and Expert Members, Salaries and Allowances

and other Terms and Conditions of Services of Chairperson and other

Members and Procedure for Inquiry) Rules, 2010. Rule 3 sets out a

selection committee for appointment of judicial members and expert

members. One of these 6 members of the selection committee is a

sitting judge of the Supreme Court and another is the chairperson of the

Tribunal. The rest of the members do not have a judicial background. It

may well be argued that these judicial members on the selection

committee would have no expertise to sit in judgment over who should

be an expert member. However, that is not the spirit in which the

selection process is to be assessed. The judicial members will be guided

by non-judicial members on relevant factors and vice-a-versa in order to

select the persons most suitable for the position. It is in the same spirit

that the selection process in the NJAC Act must be viewed.

35H. In light of the above, it is respectfully submitted that:

a. The meaning of eminent is clear and the safeguard that

appropriate persons will be appointed is provided by vesting the

power to appoint eminent persons in a High-Powered and

representative committee comprising the Chief Justice of India,

the Prime Minister and the Leader of the Opposition in the Lok

Sabha.

G

b. The presence of eminent persons is necessary to ensure

participation of the general public, a key stakeholder of justice in

the appointment process to the higher judiciary.

c. The presence of eminent persons on the NJAC would also ensure

that the appointments made reflect sufficient diversity and checks

and balances, which international best practice shows is optimally

ensured by the presence of lay members on appointment

commissions.

d. The possible non-involvement of eminent persons in the legal

profession, contrary to the misconceived belief of being a

handicap, is actually a strong virtue. Their coming from

backgrounds outside the legal fraternity render them free from

biases, prejudices and preconceived notions. They stand at an

arms length and therefore introduce a much needed element of

neutrality, plurality and citizens perspective in the process.

26

III. The presence of the Union Minister for Law and Justice on the NJAC

does not affect the independence of the judiciary

36. It is respectfully submitted that the presence of the Union Minister for Law

and Justice (Law Minister) on the NJAC as mandated by the 99th

Amendment does not, in any way, affect the independence of the judiciary

or in any manner, abrogate the basic structure of the Constitution. Rather,

the presence of the Law Minister will help in making the NJAC more

effective as a recommendatory body, providing inputs to assist in the bodys

decision-making. It is respectfully submitted that the petitioners

contentions on the unconstitutionality of the presence of the Law Minister

are based on presumptions and surmises which are not valid in law and

cannot form the basis of constitutional adjudication.

37. It has been contended by the petitioners that the presence of the Law

Minister in the NJAC is a violation of judicial independence and hence

contrary to the basic structure. It is respectfully submitted that the

presence of the Law Minister, (vide section 2 of the 99th Amendment

inserting Article 124A(1) of the Constitution) is not violative of judicial

independence. Per contra, it is necessary to ensure a scheme of checks and

balances and accountability in the power of appointment of judges.

a. The Law Minister provides information about candidates that is available

only to the Executive

27

38. It is respectfully submitted that the Law Minister, as a representative of the

Executive, brings into the deliberations vital information about the

suitability of a given candidate for appointment to the judiciary.

39. Apart from the suitability of a candidate on the basis of her judicial record,

the NJAC is also required to deliberate on the character and conduct of the

candidate eligible for appointment as a judge to ensure that the

institutional integrity of the judiciary as an institution is maintained.

40. That the Executive would be in a better position to provide the relevant

inputs about the character and conduct of a judge was acknowledged by

Verma J. (as he then was) in the Second Judges case as follows (at p.

696):

462. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasions directly from the Bar. The arena of performance of those men are the courts. It is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the Courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as Judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High

28

Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources. There may, however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potential to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best subserves this constitutional purpose would be the correct answer.

41. It is therefore respectfully submitted that there is a strong, pragmatic

reason for the inclusion of the Law Minister as his presence there will result

in better decision-making by the NJAC. The Law Minister, as a member of

the political executive, will have access to, and be able to provide the NJAC

with all the relevant information about the antecedents of a particular

candidate which the remaining members on the NJAC are likely not to have.

This will allow for the appointment process to not only suggest persons best

suited for the higher judiciary, in terms of both their judicial abilities and

conduct outside the Court, but also speed up the decision-making process by

allowing for the relevant information about a candidate to be made

available to the NJAC at the time of the decision itself.

29

b. The Executive is a key stakeholder in the justice delivery system for

which it is accountable to Parliament

42. In any form of Constitutional Democracy, the Government is a key

stakeholder in the justice delivery process. This is because, as was

explained by a founding father of our Constitution, Alladi Krishnaswamy

Ayyar in the Constituent Assembly,

There are two principles involved: One is that you must be able to maintain the independence of the judiciary and unless the judiciary has sufficient control over its own establishment its independence may become illusory. If the establishment looks for preferment or for promotion to other quarters, it is likely to sap the independence of the judiciary. But at the same time, it has to be recognised that the judiciary and its establishment would have to draw their allowances and their salaries from the public exchequer. The ultimate person who will be affected is the taxpayer. Therefore, while on the one hand you must secure the independence of the judiciary, the interests of the taxpayer on the other hand will have to be safeguarded in a democracy. That can only be done by giving sufficient control to the Government of the country which is responsible to the House of the People in the matter of finance. (Constituent Assembly Debates, Volume VIII, Friday 27th May, 1949]

43. This principle is also widely recognised in 15 countries surveyed, in an

overwhelming majority of which, appointment of judges is an executive act

with the major role being that of the executive, either directly or by its

numerical presence on a judicial appointments commission (by whatever

name so-called) (See Annexure VI).

44. Furthermore, it is respectfully submitted that the presence of the Law

Minister, who as a member of the Council of Ministers is accountable to the

Parliament, also ensures accountability in the appointments process to the

Legislature as the representative of the people.

30

45. As Krishna Iyer J. in Union of India v. Sankalchand Himatlal Sheth, (1977)

4 SCC 193held (at p. 252):

66. .The supremacy of the judiciary as a senior branch of the State in the important field of justice is a social philosophy, acceptance of which may involve many changes in the way Judges at various levels are dealt with vis-a-vis comparable categories in the executive branch including Ministers. Of course, we should make it clear that no claim to be an imperium in imperio can be extended to the judiciary or, for that matter, to any other instrumentality under the Constitution. Nor should Judges be independent of broad accountability to the nation and its indigent and injustice-ridden millions. Moreover, the judicial branch has a responsibility, within its allotted sphere, for the fulfilment of the special, economic and political pledge registered in the Constitution which we, the People of India expect to be redeemed. Professor Friedmann stated the correct position: In the modem democratic society the Judge must steer his way between the scylla of subservience to Government and the charybdis of remoteness from constantly changing social pressures and economic needs. [W. Friedmann: Law in a Changing Society]

46. It is respectfully submitted that the presence of the Law Minister therefore

ensures that the appointment process to the judiciary, while not at all being

subservient to the Government, is also not entirely remote from the needs

of the society it is supposed to serve. The Law Minister, as a representative

of the political executive and also being accountable to the Parliament will

ensure that the NJAC functions in a manner broadly accountable to the

nation while appointing judges.

47. Therefore the presence of the Law Minister is not contrary to the norms of

judicial independence, and in fact subserves a vital role in ensuring the

effective functioning of the NJAC.

31

c. The Law Minister ensures checks and balances in the process of

appointing judges

48. As explained in paras 43-58 of Part II of the Written Submissions, checks and

balances are inherent in all powers and functions relating to the judiciary in

the Constitution of India. This is evident from the structure of every

provision in Chapter IV of Part V which relates to the powers of the Supreme

Court, and likewise Chapter V of Part VI relating to High Courts.

49. A check and balance implies that no one person or institution shall have

unfettered discretion in any decision. Checks and balances are not just a

fetter on the power of the Government, but on the functioning of every

single constitutional authority. The need for such checks and balances

between the different departments of Government has been explained by

James Madison in The Federalist No. 51, as follows:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable

32

the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

50. It was to prevent unfettered discretion of the Executive that the framers of

the Constitution adopted a method of appointment that required the

President to mandatorily consult the Chief Justice of India before making all

Supreme Court appointments, and the Chief Justice of the concerned High

Court, the Governor of the concerned state besides the Chief Justice of

India for appointments to a High Court.

51. The inclusion of the Law Minister in the NJAC redraws the equilibrium to

ensure that no one organ can have the unfettered discretion to appoint

judges. A healthy presence of members of the executive and the judiciary

can be seen in most judicial appointments commissions worldwide. If there

is no executive or judicial member, then they are mandatory consultees or

the ultimate appointing authority (See Annexure VI). Thus the inclusion of a

member of the executive is in keeping with the need for checks and

balances mandated by the Constitution.

d. The presence of one member of the executive in a commission of six

members does not affect judicial independence

52. It is acknowledged that the Law Minister is a representative of the Union

of India, which is often a litigant before the Supreme Court. In

33

this context, this Honble Court, in Madras Bar Associationv. Union of

India, (2014) 10 SCC 1 (NTT case) has held (at page 217):

131. Section 7 cannot even otherwise be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention that the interests of the Central Government would be represented on one side in every litigation before NTT. It is not possible to accept a party to a litigation can participate in the selection process whereby the Chairperson and Members of the adjudicatory body are selected.

53. It is respectfully submitted, without commenting on its correctness, that

this reasoning applicable to appointments to the National Tax Tribunal

(NTT) does not apply to the process of appointments to the higher judiciary.

The Central Government is not a party to every litigation before this

Honble Court like it was intended to be before the NTT. It is, as any other

constitutional functionary is, subject to this Courts jurisdiction, but it

cannot be said that the Central Government is represented in every

litigation before this Honble Court or for that matter, the High Courts. As

such, the participation of the Executive in the appointment process will not

be automatically vitiated.

54. This Honble Court, in Union of India v Madras Bar Association (2010) 11

SCC 1 (NCLT case) has permitted the involvement of the Union Executive

in the appointment process to a tribunal, even though the Central

Government was party to some cases before such tribunal. This Court had

held (at p. 65):

34

120. (viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and the Secretary in the Ministry of Law and Justice as members mentioned in Section 10-FX, the Selection Committee should broadly be on the following lines:

(a) Chief Justice of India or his nomineeChairperson (with a casting vote);

(b) A Senior Judge of the Supreme Court or Chief Justice of High CourtMember;

(c) Secretary in the Ministry of Finance and Company AffairsMember; and

(d) Secretary in the Ministry of Law and JusticeMember.

The reasoning in the NCLT case has also been followed recently by this

Honble Court in its decision rendered on 14th May 2015 in Madras Bar

Association v. Union of India 2015 SCC OnLine SC 484 (judgment of

Sikri J.).

55. It is submitted therefore that a harmonious reading of the NTT case and the

NCLT case leads to the conclusion that the Executive can have a role to play

in the selection of judges to those tribunals or courts where it is not a party

in every case before the Court. Further, both these decisions were rendered

in the context of tribunals, where the issue of checks and balances in the

exercise of power was not a constitutional imperative. Finally, it must be

borne in mind that the Law Minister is one member in a commission of six

members. Thus neither does he constitute a majority, nor can he single-

handedly block any recommendation of the NJAC. Hence being a distinct

numerical minority (1outof6) on the NJAC means that the Executives role is

35

severely circumscribed and cannot in any way be said to affect judicial

independence.

e. The arguments of the petitioners on the noxious presence of the Law

Minister are based entirely on presumptions and supposition

56. The argument made by the Petitioners that the presence of the Law Minister

will itself violate judicial independence is based entirely on the following

suppositions:

a. That the Law Minister and the eminent persons will combine to

stall recommendations of deserving candidates.

b. That the Law Minister and the judges interacting in a closed group

will impinge on the independence of judges.

57. The only basis for these suppositions are unsubstantiated speculation of the

possibility of abuse of power, not just by the Law Minister but also the

judges and eminent persons who will combine in different ways to appoint

judges for extraneous considerations. Considering the argument of abuse of

power as a ground for denying the power, and rejecting it, a 9-Judge

Constitution Bench of this Honble Court in Mafatlal Industries Ltd. v.

Union of India, (1997) 5 SCC 536 summarised a catena of precedents and

held as follows (at p. 619):

88. To the same effect are the observations by Khanna, J. in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225: 1973 Supp SCR 1] (SCR at p. 755 : SCC p. 669). The learned Judge said: (SCC p. 821, para 1535)

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In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience.

To the same effect are the observations in T.N. Education Deptt. Ministerial and General Subordinate Services Assn. v. State of T.N. [(1980) 3 SCC 97 : 1980 SCC (L&S) 294 : (1980) 1 SCR 1026] (SCR at p. 1031) (Krishna Iyer, J.). It is equally well-settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty[(1962) 3 SCR 786 : AIR 1962 SC 316] , this Court observed: The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. It was said in State of Rajasthan v. Union of India [(1977) 3 SCC 592 : (1978) 1 SCR 1] (SCR at p. 77), it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. (Also see Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005 : AIR 1954 SC 282] (SCR at p. 1030).

58. It is respectfully submitted that the mere possibility of the abuse of power

by an authority therefore cannot be sufficient, in law, to deny the vesting of

the power in that authority and cannot rebut the presumption of

constitutionality enjoyed by legislative enactments.

59. A similar argument was raised by the petitioners in Centre for PIL v Union

of India (2011) 4 SCC 1 with respect to the High Powered Committee that

was set up under Section 4 of the Central Vigilance Commission Act, 2003.

The Court held (at p. 33):

81.The 2003 Act is enacted with the intention that such High-Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national

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interest. Each of the members is presumed by the legislature to act in public interest

60. This Honble Court must therefore presume that the members of the NJAC

will act in a non-partisan manner and perform statutory duties keeping

larger national interest in mind. This presumption cannot be selectively

applied to holders of certain offices and not to others in determining the

constitutional validity of legislation or constitutional amendments which

vest such duties on the holders of such offices.

61. Therefore, it is submitted that the mere presence of the Law Minister in the

NJAC is not contrary to the principle of judicial independence in any way,

and does not, in any manner, affect the basic structure of the Constitution.

62. For all the reasons discussed hereinabove, it is most respectfully submitted

therefore that the presence of the Law Minister ensures:

a. Better decision making by the NJAC in making recommendations

of candidates suitable for appointment.

b. Accountability of the NJAC to the public at large, in the exercise

of its functions.

c. Maintenance of the constitutional scheme of checks and balances.

63. It is also humbly submitted that the presence of the Law Minister cannot be

presumed to affect the independence of the judiciary, since the Central

Government is not party to every dispute being agitated before the Supreme

Court. Further, the Law Minister is only 1 out of a

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membership of 6, and does not have a determinative role in appointments.

Finally, it cannot also be presumed in law that the power of voting for or

against a recommendation will necessarily be exercised by the Law Minister

mala fide.

IV. The setting up of the NJAC has two key advantages, viz., transparency

and accountability in the matter of appointments

a. Transparency and accountability in the matter of appointment of judges

are essential for the public to repose their confidence in the judiciary

64. It is respectfully submitted that the independence of the judiciary

connotes independence from wide ranging forms of pressure not

merely political or executive control, but freedom even from the class

to which Judges belong. This was explained by Bhagwati J. (as he then

was) in the First Judges case, as follows (at p. 223):

27.It is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centers, economic or political, andfreedom from prejudices acquired and nourished by the class to which the Judges belong. If we may again quote the eloquent words ofJustice Krishna Iyer:

Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither Judiciary made to Opposition measure nor Governments pleasure. (Emphasis supplied)

65. One of the cardinal requirements of ensuring judicial independence is

selection of persons of highest merit and competence who are able to

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discharge their duties independently of any form of pressure, by means of a

transparent and fair process. Then and only then can the judiciary enjoy

public confidence. Lord Gill, Lord President and Lord Justice General of

Scotland (Scotlands longest serving and senior most Judge) remarked in his

recent speech at the 19th Commonwealth Law Conference, 2015:

I suggest that to answer the question what kind of judges we wish to have? our starting point should be that we wish to have judges who have come to judicial office by a process of appointment that is open, transparent and fair. Only in that way can the judiciary deserve and enjoy public confidence. I think that it is fair to say that until 20 years ago, in the United Kingdom jurisdictions the appointment process if such it could be called remained hidden from public view and has aspects of mystery.

In the last two decades, the process by which judicial appointments ar