Author Name:   ms. chitraloungani

the recent judgement of NJAC and its relevance to separation of power theory. and the NJAC its violation of basic stracture theory.

National Judicial Appointment Commission and Its Relevance to the Theory of Separation of Power

The National Judicial Appointments Commission (NJAC) was a body tasked with appointing judges to the higher judiciary in India. Article 124 of the Constitution was amended through the 99th Amendment to reflect the change in the system of appointments from the collegium system, in which a body of judges would be consulted by the President to appoint the judges, with the judiciary’s opinion being final. The composition of the NJAC includes as the Chief Justice of India, the two senior most judges of the Supreme Court, the Law Minister and two “eminent persons”. A sub-committee was further constituted to appoint the “eminent persons”. The composition of the sub-committee includes the Prime Minister, the Chief Justice, and the Leader of the Opposition.

The composition of the NJAC, therefore, presents a problem it allows excessive executive interference in the appointment of judges. More specifically, the term “eminent persons” has not been defined with clarity, leaving a lot to the discretion of the executive. Therefore, it was natural for the judiciary to fear the abuse of such discretion by the executive, resulting in political appointments to the Supreme Court and the High Courts. Petitions were filed before the Supreme Court to strike down the 99th Amendment as being unconstitutional. The Court reasoned that the 99th Amendment was unconstitutional. In arriving at this conclusion, the Court evaluated the theory of separation of powers and held that the interference of the executive in the appointment of judges to the higher judiciary was a violation of the theory. How was this interference a violation of the theory?

The Court relied on the reasoning laid down by the Supreme Court in Bhim Singh v. Union of India “The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. Thus, the test for the violation of separation of powers must be as “a law would be in violation of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability.”

Therefore, the most important issue related to the theory of the separation of powers in the judgment was framed as follows:
“As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed – whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence. “The respondent contended that the appointment of judges was an executive function. However, the Court reasoned that the constitutional convention is that a judge to the higher judiciary is appointed only if the Chief Justice of the respective court agrees with the appointment. The Court enumerated the constitutional convention, borrowing the facts from Supreme Court Advocates on Record Association v. Union of India ((1993) 4 SCC 441(known as the Second Judges Case), as The executive had absolute power to appoint the Judges under the Government of India Act, 1935. Despite that all the appointments made there under were made with the concurrence of the Chief Justice of India. A convention had come to be established by the year 1948 that appointment of a Judge could only be made with the concurrence of the Chief Justice of India. All the appointments to the Supreme Court from 1950 to 1959 were made with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to the High Courts during that period were also with the concurrence of the Chief Justice of India. Mr Gobind Ballabh Pant, Home Minister of India, declared on the floor of the Parliament on November 24, 1959 that appointment of Judges were virtually being made by the Chief Justice of India and the executive was only an order-issuing authority. Out of 547 appointments of Judges made during the period January 1, 1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the Chief Justice of India.”The Court then went on to state:

“These facts and figures clearly indicate that at least since 1935, if not earlier, the appointment of judges was made in accordance with the view of the Chief Justice of India or the Chief Justice of the High Court as the case may be. There were aberrations but these appear to have mainly taken place only after Independence, as mentioned above. But even in those cases where there was aberrations pre-1959 (with the Chief Justice of the High Court having been by-passed) the concurrence of the Chief Justice of India was taken. The executive, therefore, never had real primacy in the matter of appointment of judges. “

Further, the Court held that The Chief Justice of India and other judges are undoubtedly well qualified to give proper advice with regard to the knowledge, ability, competence and suitability of a person to be appointed as a judge of a High Court of the Supreme Court. There is no reason, therefore, why the opinion of the Chief Justice of India taken along with the opinion of other judges should not be accepted by the executive, which is certainly not better qualified to make an assessment in this regard.

Separation of powers or say distribution of powers is the tectonic structure of the Constitution of India. The various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each branch which Khehar, J. has stated as ‘core functions’, and there should be no interference with regards to the power.

Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in appointments, if not, anything worse.” Also, the Court held: “The Constitution 99th amendment impairs the structural distribution of powers, and hence, it is impermissible.

If primacy of judiciary in the appointment of judges is held to be not a part of basic feature, the Parliament may be free to confer the said power on the Executive or the Legislature or to any other authority which can certainly compromise the independence of judiciary. It will also in turn disturb the doctrine of separation of powers and other basic features like rule of law, democracy and federalism and working of the Constitution as a whole. Independence of judiciary is key element in the entire functioning of the Constitution and such independence is integrally linked with the appointment of judges free from Executive interference.

Therefore, for these reasons, the 99th Amendment was perceived to be violating the theory of separation of powers, and the theory being a part of the basic structure of the Constitution, the Amendment was violation of the basic structure. Thus, it was struck down as unconstitutional and declared void.

Thus, in the manner illustrated above, the Supreme Court, while dealing with the issue of appointment of judges by the NJAC, clarified its stand on the theory of separation of powers.

Endnotes
# constitution of india- M.P. Jain
# constitutional assembly debates
# (2010) 5 SCC 538)
# 1993) 4 SCC 441

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