Supreme Court Advocates on Record Association v Union of India (Fourth Judges case, National Judicial Appointments Commission)

Facts

• The 99th Amendment inserted Art.124A, constituting the National Judicial Appointments Commission with six members.
• Its composition was the Chief Justice of India as Chairperson, the two next senior-most Judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the People.
• One of the two eminent persons was to be from among the Scheduled Castes, Scheduled Tribes, other backward classes, minorities or women, and each was to hold office for three years without re-nomination.
• The accompanying Act provided that a recommendation would not be made if any two members of the Commission disagreed, so that any two members held a veto.
• The amendment and the Act were challenged as destroying the independence of the judiciary and the primacy of the judiciary in appointments.
• The Union contended that the amendment restored the constitutional text to its original intent and cured the opacity of the collegium.

Issue

1. Whether the 99th Amendment and the National Judicial Appointments Commission Act violated the basic structure by impairing the independence of the judiciary and the primacy of the judiciary in appointments.

Held

• By a majority of four to one the amendment and the Act were struck down, and the collegium system stood revived. The majority held that primacy of the judiciary in appointments is an integral part of judicial independence, which is a basic feature, so it cannot be taken away even by constitutional amendment. On the composition, the presence of the Law Minister introduced the executive directly into the selection process, and the two eminent persons were lay members with no necessary knowledge of judicial ability whose nomination was itself controlled in part by the executive. Combined with the rule that any two members could block a recommendation, the arrangement meant that the three Judges could be outvoted and that the executive together with one other member could veto any name. The judiciary was thus left without primacy. The Court also held that the presence of the Law Minister created a conflict of interest, the Government being the largest litigant. Chelameswar J dissented, holding that the collegium is opaque and unaccountable, that primacy of the judiciary is not the only means of securing independence, and that the amendment was valid. The majority nevertheless accepted that the collegium's procedure required improvement and directed that its transparency, eligibility criteria and secretariat be addressed.

Ratio Decidendi

Independence of the judiciary is protected not by any single provision but by a set of structural arrangements, of which the manner of appointment is the first and most important. Where the body that selects Judges is controlled or effectively vetoed by the executive, the judiciary's capacity to decide against the executive is compromised at the source. Since the basic structure limits the amending power, an amendment producing that result is void however regular its passage.