Justice Madan Lokur’s Judgment In NJAC Case Has The Key To Recent Irritants Between Executive And The Judiciary

In the latest exchange of barbs, the Law Minister, Kiren Rijiju has questioned the origin of the collegium system, by backing former Delhi High Court Judge, Justice R.S.Sodhi, who remarked in an interview that the Supreme Court had ‘hijacked’ the Constitution in the Second Judges case in 1993, by letting Judges appoint themselves. Subsequently, Rijiju alluded that judges lack accountability because they don’t have to face elections or public scrutiny after their appointment. He added that though the public can’t change judges, they are watching and assessing their way of dispensing justice, as nothing is hidden in the age of social media.

Rijiju again joined the issue with the judiciary, by questioning the Supreme Court Collegium’s move to disclose inputs provided by the Research and Analysis Wing (RAW) and Intelligence Bureau (IB) while reiterating its recommendations on potential judges of the high courts, returned by the Government for its reconsideration. According to him, making the secret or sensitive reports of these agencies public is a matter of grave concern, which will be addressed in due time.

Rijiju’s recent remarks have heightened the tensions between the two organs- Executive and the Judiciary - especially because his recent letter to the Chief Justice of India seeking a role for the Executive in the search and evaluation committees to shortlist potential judges of the higher judiciary by the Collegium, had already raised a controversy. The letter came amidst the Supreme Court grilling the Government on the judicial side, over its inaction in filling several vacancies in the high courts, keeping the Collegium’s recommendations and reiterations pending.

Rijiju’s unhappiness over the latest reiterations from the Collegium will only add to the uncertainty over whether the Union Government will expeditiously notify the appointments, as recommended and reiterated by the Collegium with disclosure of reasons in the public domain.

In the NJAC judgment, Justice Madan B. Lokur, in his concurring judgment, asks in Paragraph 363: “Assuming, the executive rejects the recommendation of the Chief Justice of India even after its unanimous reiteration, what is the solution to the impasse that is created?”

The answer, Justice Lokur says, is to be found in Shamsher Singh vs State of Punjab (1974) and reiterated in Union of India vs Sankalchand Himatlal Sheth (1977). It was held in Samsher Singh that in such an event, the decision of the executive is open to judicial scrutiny. It was said:

“In all conceivable cases, consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the CJI”.

This view, Justice Lokur adds, was reiterated in Sankalchand Sheth.

Justice Lokur observes that of course, it is another matter that no one has a right to be appointed as a judge, but certainly if the unanimous recommendation of the judiciary through the Chief Justice of India is not accepted by the President, if nothing else, at least the record will be put straight and the possible damage to the dignity, reputation and honour of the person who was recommended by the CJI will be restored, at least to some extent.

In Paragraph 364, Justice Lokur asks: “But is judicial review necessarily the only answer to a problem of this nature? Should the executive and the judiciary ever be on a collision course in the appointment of a judge? Not only did Dr.Ambedkar think that such a situation would not occur, he never visualized it. Dr. Ambedkar made provision for virtually every contingency, except a stalemate or deadlock situation - he never imagined that such an eventuality would ever arise”.

Justice Lokur concludes this discussion by saying that as the Constitution incorporated the consultation provision only for the appointment of Judges, and not for other Constitutional functionaries like the Chief Election Commissioner and the Election Commissioners or the Comptroller and Auditor General (CAG), even though these positions are of vital importance. Justice Lokur inferred that the Constituent Assembly conveyed a clear message in this that the recommendation by the CJI for the appointment of a judge of the Supreme Court or the High Court has utmost sanctity. Justice Lokur observed that the draft of Article 124 of the Constitution used the word ‘consultation’ instead of “concurrence” to fetter the discretion of the President by someone who knows what is in the best interests of the judiciary.

Indeed, Justice Lokur’s separate judgment has answers to every recent controversy raised by the members of the Executive. The Vice President, Jagdeep Dhankhar, was reported recently questioning the Supreme Court’s striking down of the 99th Amendment to the Constitution and the NJAC Act, despite the fact that they were unanimously passed by the Parliament and most state legislatures.

In Paragraph 421, Justice Lokur observed that the Courts in our country do not question the wisdom or expediency of the Legislature enacting a statute, let alone a Constitutional amendment. In Paragraph 433, he explained that a judge may have a view one way or the other on the collegium system of appointment of judges and on the manner of its implementation - but that opinion cannot colour the application and interpretation of the law or the reasoning that a judge is expected to adopt in coming to a conclusion whether the substitute introduced by the 99th Constitution Amendment Act is constitutionally valid or not. He made it clear that the question of any Court substituting its opinion for that of the Legislature simply cannot and does not arise.

Justice Lokur articulated the view that the Courts must defer to the wisdom of the Legislature and accept their views, as long as they are within the parameters of the law, nothing more and nothing less. The constitutional validity of the 99th Constitution Amendment Act could not be tested on opinions, however strong they may be or however vividly expressed, he held. Public opinion, manifested through Parliament or otherwise, really pales into insignificance over the law that is interpreted impartially and in a non-partisan manner, he held.

In Paragraph 441, Justice Lokur underlined that the debate could not be reduced to the acceptance of an unconstitutional but popular decision versus a constitutional but unpopular decision. All of us are bound by the Constitution and judges have to abide by the oath of office to uphold the Constitution and the laws, even if the decision is unpopular or unacceptable to Parliament, he held.

Indeed, Rijiju’s letter to the CJI seeking a role for the executive in the search-cum-evaluation committees to shortlist potential judges is akin to the NJAC which had the presence of the Union Law Minister, as one of the six members. In Paragraph 516, Justice Lokur conceded that the inputs from the executive are important in the process of taking a decision whether a person should or should not be appointed as a judge of a High Court or the Supreme Court. But Justice Lokur cautioned that providing inputs by the executive is quite different from the process of taking a decision by the executive or the executive being involved in the process of taking a decision.

Justice Lokur observed that the Law Minister is, by virtue of the office held, potentially capable of influencing the decision of a member of the NJAC. The selection process, as he put it, must not only be fair but must appear to be fair.

In Paragraph 551, Justice Lokur anticipates Rijiju’s latest concern over the Collegium’s disclosure of inputs by Government’s agencies like the RAW and the IB over the suitability of the recommendees. Justice Lokur quotes the then Attorney General Mukul Rohatgi as having submitted that the functioning of the NJAC would be “completely transparent”. Rohatgi relied on the Supreme Court’s 2014 judgment in Renu v District Judge to contend that in the matter of appointment in all judicial institutions, "complete darkness in the light house has to be removed”.

Justice Lokur was of the view that merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a dhobi-ghat. Therefore, he suggested that the recommendees have a right to non-disclosure of the adverse information supplied by the Executive. In the latest reiterations, as the Collegium explains, none of the inputs supplied by the Executive about the recommendees could be interpreted as adverse to them, and therefore, there was clear merit in disclosing them to the public.