Anil Divan Foundation

[Clip of Justice Khehar speech]

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Jab main judge bana toh har saal mai vacation baiththa tha. To Jab panch saath saal vacation mein baitha toh prashan utha ki ye vacation mein kyun baithta hain? Toh hum vacation me baithna band kar diye. Jab Supreme Court mein aaya toh vacation mein baithta tha, har saal baithta tha… Hum kya kar sakte, judges kya kar sakte hain, vakil jan kya kar sakte hain? Kya hum kuch din extra de sakte hain? Kya iss marathon mein hum kuch contribute kar sakte hain?...

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Host: That was Chief Justice JS Khehar reflecting on his career-long habit of sitting in court even during court vacations. This professional quirk would surface again in the summer of 2015—when he led arguably the most momentous vacation bench in recent history. For 31 days, Justice Khehar, his colleagues, and the who’s who of the bar assembled in courtroom number 4 of the Supreme Court for a case where judicial independence hung in the balance.

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Welcome back to Friend of the Court, I am your host Raghu Karnad. In the last two episodes, we explored the history of judicial appointments, the politics which influenced it and the lawyers who shaped it. We ended that episode with the Congress-led UPA government’s failed attempt to usher in the NJAC, or National Judicial Appointments Commission. In this final episode, we look at the BJP-led NDA government’s push for the NJAC as soon as it came into power in 2014 and the legal battle that followed. 

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[English News Clip]

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(Sounds of Parliamentary uproar, followed by anchor’s summing up) Alright then. The ruckus there we are seeing in Lok Sabha, in fact the ruckus in both houses of Parliament today. This with respect to the latest statement that has been made by the Press Council of India chief and a former Madras High Court Justice Markandey Katju. He has now put the former Prime Minister Manmohan Singh and three former CJIsin the dock with respect to the latest statement where he claims an additional judge in the Madras High Court was promoted from being a district court judge despite adverse entries against him.

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Host: The NDA had first attempted judicial reforms in the Vajpayee years. Now, with the buzz around the Katju controversy, and still riding high on popular approval, the full-majority NDA government saw an opportunity. Law minister Ravi Shankar Prasad, quickly organised a meeting of former Chief Justices, senior jurists and lawyers. At the meeting, the heavyweights seemed to agree on one thing: the collegium system needed to go.

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Two weeks later, on August 11th, 2014, in the inaugural session of the 16th Lok Sabha, the government introduced two bills. It faced criticism from some MPs for rushing the process. And later, Attorney General Mukul Rohatgi, the government’s top law officer said that even he was surprised and  “did not know this bombshell would happen”. But the government was determined to usher in the reforms by introducing the 121st Constitution Amendment Bill and the NJAC Bill. 

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Why did the reforms require two different bills? First, the government had to lay the groundwork for removing the legal basis for the collegium system. To do so, it proposed the constitutional amendment bill to delete the much-debated phrase from Article 124 which says: the Chief Justice of India shall always be consulted. Instead, the article would now say: appointments would be made as recommended by the National Judicial Appointments Commission. Then, the NJAC bill would build on this to design the specifics of the process. Ravi Shankar Prasad, who was the law minister in 2014, explained the composition of the NJAC in Parliament:

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RS Prasad: Sir, what is this architecture?... Architecture is, that the NJAC shall be headed by the Chief Justice of India. Two senior-most judges of the Supreme Court shall be the members. Law minister shall be the member. Two eminent persons to be appointed by the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha…. 

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Host: Parliament passed the bills almost unanimously. The only standouts were the political party AIADMK and Rajya Sabha MP Ram Jethmalani, the 89-year-old legal veteran who abstained from voting. In all, both houses had taken less than a week to introduce, debate and pass two bills. Next, the constitutional amendment would have to be ratified by half of the country’s state legislatures. After that, the collegium system would be one gazette notification away from extinction. 

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While the government faced little opposition in Parliament, discontent was bubbling outside its walls. Even those who had participated in government consultations were taken aback by the swift pace of events. Here is senior jurist Fali Nariman reflecting in an interview shortly after the bills were passed in Parliament:

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Fali Nariman: (1.08 and 4.48. To 5.18) He did not indicate to any of us at the meeting that there was in the offing a constitution amendment bill as well as a judicial commission bill …. It apparently was not known to the law minister at that point of  time. So I don't think that he suppressed it or any such thing. Although this process may have been going on for many years together,... I am sure that if he had known there was to be, or would have been or he had the draft bill with him he would have circulated it to us… Therefore I believe he did not have any idea there would be a bill. This sudden change took place by some sudden superior power, or some superior being or some superior force. 

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Host: Within weeks, Fali Nariman arrived in the Supreme court to challenge the NJAC. As he did in the “Second Judges” case which created the collegium system, Nariman was arguing for the Supreme Court Advocates on Record Association or SCAORA. The petitions came up for hearing in the courtroom of Justice Anil Dave. Nariman argued that the twin bills—which were not yet laws—would result in serious damage to the Constitution by threatening the independence of the judiciary. They therefore needed to be heard at an earlier stage, when there was still scope for reversing them. After hearing both sides, Justice Dave dismissed the pleas. Round one had gone to the government. Senior legal reporter Utkarsh Anand, who covered the case for the Indian Express, explains why: 

 

Anand: Mr. Mukul Rohatgi, the Attorney General of India as he then was, he argued that it is premature, the petitions are premature. you can't have these challenges before the court because the Act is not enforced... So the court made it very clear that we are not entertaining these petitions at the juncture because the Act is yet to be notified. All the petitioners they were given the liberty to come back to the court after the notification of the Act.

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Host: This meant they could come to the court after the Act had been formally announced in the official gazette. By December 2014, 16 states ratified the amendment bill paving the way for the NJAC to attain constitutional status. The government celebrated the smooth passage of the bill as a triumph of the will of the people. 

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By the end of December, the president gave his nod to both bills. Leading lawyers looked on, appalled by what they saw as an assault on the Constitution and soon began gathering forces to mount a fresh challenge.

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In January, Nariman returned to court. By March, the Bar Association of India, represented by Anil Divan also filed a challenge. Soon, other petitions opposing the NJAC came up for hearing before a three-judge bench in March 2015. 

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Firmly in the other camp however, was another group of lawyers. The Supreme Court Bar Association, a 12,000-member body, wanted to intervene in favour of the NJAC. In a story vividly headlined in the Times of India, and I quote, “Supreme Court bench struggles to keep advocates at bay on NJAC Act case” the paper reported that the bar was sharply divided on the issue.

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Advocates from “Kashmir to Maharashtra” pleaded with the bench to permit them to “have their say” in that first hearing in March 2015. Lawyer Matthews J Nedumpara reportedly “created a flutter” in court when he argued on the issue of nepotism. At one point he produced a detailed chart showing how all recent appointees under 45 were related to sitting or former judges. Utkarsh Anand tells us more on the early days of the NJAC hearings:

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Anand: And the court said that you don't need to multiply petitions, we’ll give opportunity to all the senior advocates, all those who want to argue. We’ll try and limit the argument we’ll give opportunity to everyone to argue the case. Mr. Nariman would open the argument to be supported by Mr. Divan. They were there in the previous round also. They had the experience, they had wherewithal, and as the chatter in the Supreme Court corridors went around that time.

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Host: The petitioners asked the court to form a constitution bench. A five-judge bench was formed, headed by Justice Dave. But it ran into controversy even before its first hearing on April 15th. Two days earlier, the government had notified the Constitutional Amendment Act and the NJAC Act in the gazette, meaning it had officially brought them into force.

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This meant that the NJAC itself, comprising the three senior-most Supreme Court judges, could soon be formed. The petitioners saw a potential conflict of interest brewing. As the third-most senior judge, Justice Dave would be an ex-officio or automatic member of the NJAC. As an NJAC member, would it be proper for him then to sit on a bench deciding on the very constitutionality of the NJAC itself? Nariman approached the bench asking Justice Dave not to attend NJAC meetings while the matter was pending.

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[Hindi News clip]

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Jo amendment hai, jo Constitution hai Article 124A  woh amendment bhi unconstitutional hai woh Basic features of the Constitution hai usko affect karta hai isliye both the amendment of the Constitution as well as the NJAC dono struck down ki jani chahiye. Kyunku yeh mamla teen judges ke aage tha. Toh honourable teen judges ne yeh decide kiya hai in accordance with the provision of the Constitution. Kyunku counselji yeh interpretation ka mamla hai. Isliye this matter should go to the five judges bench. Woh humne bhi argue kiya tha. Toh teen judges ne bhiaaj yehi faisla kiya hai ki panch judges hi sunenge. Toh ab yeh maamla five judges ke paas jayega

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Host: Justice Dave recused himself. The new bench was now headed by Justice JS Khehar, the fourth most senior judge in the Supreme Court. This time, Nariman directly asked for the judge’s recusal. Justice Khehar, being the fourth-most senior judge in the Supreme Court, was a part of the collegium. Nariman reasoned that Justice Khehar had an interest in keeping the collegium system alive, which meant he could be biased.

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Without offering an immediate explanation, the bench unanimously refused Nariman’s request and Justice Khehar stayed on. With the bench set, arguments could commence. But before they began, the court had to clarify some administrative procedures. The legal basis of the collegium had been erased following the constitutional amendment, and the NJAC had not yet started functioning. So who would appoint judges in the interim?

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Attorney General Rohatgi promised that the NJAC would be constituted immediately to take care of these contingencies. But just days later, Chief Justice HL Dattu wrote to the Prime Minister refusing to participate in the NJAC until the Supreme Court decided the matter.

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This effectively stalled the immediate formation of the appointments body. Before these logistics could be clarified, the proceedings moved into the month of May – when it was time for the court to break for its annual summer vacation. Bar Association of India president Prashant Kumar recalls the problem it presented:

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Kumar: Chief Justice Khehar said that you know, my appointments are stopped, this case is to be heard, there has to be a decision. We are ready to give up our vacation. What about the lawyers? We immediately agreed, but on the other side they knew that not making appointments is itself putting pressure. But then when we pushed Mr. Nariman, Divan, and everybody said that we are ready to sit out the vacations and assist the court then other side also… Because, you know, by even otherwise sitting of the Constitution bench all five days, disturbs so many benches. And so the hearings take place by fit and starts, lawyers are busy in other courts. So, you know, lot of discontinuity takes place. So I think keeping the hearing during vacations was a very good decision.

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Host: Despite the court breaking for vacation, courtroom number 4 was packed daily. Prashant Kumar told us he used to arrive an hour early to secure seats. To observers of the courtroom drama, there was both history and theatrics on full display. Utkarsh Anand was there too, filing stories for the next day’s newspaper. He describes the scene: 

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Anand: It looked like a full working Supreme Court room. You never had.. Court number 4  had a very small opening in the Supreme Court, you would have only half the door getting open for interest for litigants to go inside. But this case, when the arguments used to take place, they had to open both the doors to make sure that people can go inside, the lawyers can go inside. Then you had a bunch of all the journalists hearing these arguments. So it was very difficult to make your way through and people like senior advocates like Mr. Nariman, Mr. Divan or Mr. KK Venugopal - they would often need help of their associates and juniors. Juniors they will walk in first, they will make way for the Senior Advocate to get in. And there were times when the court will keep looking for where is Mr. Nariman. “Mr. Nariman is perhaps stuck at the door. He is still finding his way in. Mr. Divan is not there because there is so much rush inside the court.”

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Host: Once they fought their way in, Divan and Nariman made a simple inter-linked argument against the NJAC. Judicial independence was considered part of the Basic Structure of the Constitution. It could only be upheld if the judicial upper hand was maintained in the appointments process. They argued that the NJAC would end judicial dominance and  increase political influence.

 

Most worrying was the presence of three non-judicial members in the six-member NJAC. These included the law minister and two undefined eminent persons, who would have an equal vote in the selection process.  Any two members who voted “no”, could shoot down an appointment. If the non-judicial members had an equal footing in the process, it meant that the danger of executive control in the appointment process was real. Here is Nariman explaining his concerns in an interview to the TV Channel NewsX:

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Nariman: Outvoting, where the possibility and the grave probability of judges being outvoted is there, because the number of the Commission is six, not an odd number but an even number. And each has one vote so the Chief Justice is now become as a matter of fact no longer the Chief Justice of India but the Chief Justice only of the Supreme Court. And that is what to my mind is a matter of great despair and despondency.

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Host: The petitioners were only getting started with their complaints about the NJAC. Next, they turned their attention to the ill-defined eminent persons. Who would they be? And would they be qualified to pick judges to perform crucial constitutional functions? 

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The government’s legal teams were inconsistent in their replies. The Attorney General Mukul Rohatgi, arguing on behalf of the central government, informed the court that these individuals would be chosen from outside the legal fraternity. But Maharashtra’s counsel Senior advocate TR Andhyarujina, told the court that they would be senior lawyers or even retired judges. The contradictory answers captured the confusion over even the basics of the NJAC’s composition. Senior advocate Santosh Paul who argued alongside Divan tells us of the bizarre discussions that ensued when the judges raised some questions:

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Paul: So they asked the question to the lawyers on the other side who are arguing to sustain the NJAC: Who are the eminent persons according to you? And you wouldn't believe the names which came up: Bill Gates, Satyajit Ray. Now, Satyajit Ray was no more at that point of time, and he certainly would not spend time on judicial appointments, one. Bill Gates was certainly not the candidate, given the vast amount of, you know, litigation, which his company has in the courts in various parts of the world. So the hollowness of that argument became threadbare.

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Host: But the petitioners contested the NJAC most intensely on one single principle that it  threatened to destroy. They argued that the new scheme violated the Basic Structure of the Constitution because it threatened the independence of the judiciary. Anandita Pujari, who was a member of the Bar Association of India, one of the petitioners in the case, explains the argument:

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Pujari: The petitioners’ case was primarily premised on the fact that the NJAC Act as well as the constitutional amendment was violative of the Basic Structure of the Constitution, because it somehow took away independence of judiciary, as well as also had the impact of affecting rule of law fundamentally. As we all know, independence of judiciary and the power of judicial review, these are the two values that have been held to be part of Basic Structure of the Indian Constitution…

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Host:  Anil Divan argued that by attacking the appointment process, the government was limiting the court’s powers of judicial review. Divan offered the court crucial context: that in the past, whenever the judiciary exercised its power of review, it resulted in strained relations with other branches of government. Anandita Pujari, who assisted Divan in this case, drew up a vivid picture of his submissions before the court.

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Pujari: Mr. Divan’s arguments were different, because he did try to give a complete context to what was happening around. Because if you look at the history of the court as an institution, it is called as the counter-majoritarian, you know, arm, which actually has the power of judicial review, it is supposed to protect people's fundamental rights. And he gave the example of the spectrum allocation case, he gave the example of the coal case. And he said, look at a situation where these two cases, were actually situations wherein another organ of the government was found to be indulging in either corrupt practice or not following the rule as such, and therefore that had led to loss in public exchequer… and in that kind of a scenario, the Supreme Court as an important organ of the government has come up and exercised its power of judicial review, and has ensured that the institutions act properly and are accountable to the people of this country. So if you look at this context, and the institutional dynamics in which the Supreme Court has to locate itself, while finding a voice for itself, while protecting the rights of the people, at the same time, ensuring that the other organs of the government are acting within the parameters of constitutional parameters.

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Host: But the government was adamant. Attorney General Mukul Rohatgi led with one broad argument: that the laws were endorsed by the people. He was referring to the near unanimous support they  got in Parliament and the states. Here he is, explaining in an interview to a TV channel in 2017:

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Rohatgi: But what is important is that a constitutional amendment of this nature, where Parliament passes it with a huge majority, and the state assemblies also ratify the same amendment? So virtually, it's the whole of the country.

 

Host: Then the government pulled out the heavy artillery. It attacked the basis of the collegium system. At one point, Rohatgi asked the court to constitute a 11-judge bench to review the Second Judges case. The court refused. 

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The government had one clear stand: that the collegium itself was a judicial innovation and that the Constitution had never provided for it. It argued that the collegium system disturbed the system of checks and balances by excluding the other branches of the government from the appointments process. Rohatgi again:

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Rohatgi: That is not what the Constitution said then not, not what it said now. But anyway, (so the second judges), the judgement said they will be collegium, collegium means a group of senior judges so they will appoint judges. Nowhere in the world mark you. So there was no precedent for this collegium or whatever because the Constitution doesn't say collegium. So this was the invention of judges, that the judges will appoint judges.

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Host: Rohatgi questioned the quality of judges appointed through the collegium system, which irked the bench. Newspapers regularly reported the back-and-forth sparring between the Attorney General and the bench. Legal reporter Utkarsh Anand recalls that there were also a slew of veiled remarks, especially from the Attorney General.

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Anand: He started giving examples of the judges, he went a little bit personal also when he said it when he talked about a few judges who would retire without giving even 100 rulings in their lifetime. Then he would talk about a lady judge who would come very late in the courtroom. Now he would not name them in the court. But the judges on the bench, the lawyers who were hearing the argument, I mean, we the journalists, we would know that he was referring to. All these references were very apparent, very, very well known.

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Host: At one point, the bench asked Rohatgi if the government would be willing to consider some of the criticism and amend the laws. But the government didn’t budge, except at the very end when Rohatgi extended an olive branch. By then, the government’s aggressive stance and occasionally savage personal attacks on judges had left a bitter after taste.

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Arguments concluded in July of 2015, as the court vacation was ending. The bench reserved its judgement. Three months later, on October 16, at 10.30am a gaggle of senior lawyers gathered in court room number 4. On the lawns, reporters and camera persons were camped out eagerly. How had the five judges weighed in?

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[News Clip]

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The Supreme Court has struck down the National Judicial Appointments Commission. The Supreme Court has said that the 99th Amendment which brought in the NJAC that proposed to give more say to the executive in top judicial appointments is unconstitutional and violates the Basic Structure of the Constitution.

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Bhushan: The court has held that this National Judicial Appointments Commission in which the government would get a substantial say in judicial appointments interferes with the independence of the judiciary and therefore has been declared to be unconstitutional. 

Host: As with the First and Second Judges cases on judicial appointments, the bench gave a split opinion. The majority was of the view that the composition of the NJAC was not sufficient to ensure judicial independence. They held that the participation of the law minister in the decision-making process would violate the Basic Structure. And they agreed with the petitioners that giving the vaguely defined eminent persons an equal say in the NJAC would be disastrous for judicial autonomy.

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Only one member dissented: Justice J Chelameswar. In his dissenting judgement he criticised the collegium system for being opaque and erratic. He agreed with the Attorney General that the primacy of the judiciary in appointments was not a part of the Basic Structure. He then stated that leaving the government out of the appointment process was definitely unconstitutional as it violated the system of checks and balances.  Others, like Dushyant Dave who argued against the collegium, conceded that the NJAC was not the best alternative. But he wished that the court had read down or fine-tuned the law.

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Dave: I think instead of striking down the provisions relating to NJAC, Supreme Court should have been wise enough to, you know, control the constitution of NJAC… The three members who were to be appointed independent members, they could have said that they will not be selected by a collegium of Prime Minister Leader of Opposition and the Chief Justice, but they will be constituted by three senior-most judges of the Supreme Court or something like that, in consultation with the Prime Minister and Leader of Opposition. I mean, you can't bring politics into the appointment of judges, it was a direct attempt to do so. To that extent, NJAC certainly had a, you know, I would say, a weak, mechanism. But it could have been tweaked by judges instead of striking it out.

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Host: The decision was hailed as a victory for judicial independence. The government was initially taken aback by the verdict. Then two days later… 

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[News Clip]

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Finance minister Arun Jaitley took to Facebook to voice his opinion on the move, coming down heavily on the apex court’s verdict. Jaitley said Indian democracy cannot be a tyranny of the unelected and it would be in danger if the elected are undermined. Comparing the judgement to a 9pm television debate, Jaitley contended that politician bashing is the key behind striking down of the National Judicial Appointment Commission.

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Host: Despite this strong disagreement with the court, the government did not try pushing the reforms through Parliament again. Utkarsh Anand ventured a guess as to why they held back:

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Anand: The government had lost this battle on both counts. They lost it on the public opinion. They also lost it in the courtroom. The government was new. They had sought a reform, which was long pending this was BJP which wanted the reform to be brought in.. They faltered it, they failed it….and There was already a controversy regarding non-appointment of Mr Gopal Subramianiam to the Supreme Court. So i think they had enough in the first year-and-a-half. They thought relegislating it will again mean going back to the Supreme Court. Justice Khehar, had to become the Chief Justice of India, the judge, which was leading the bench when the NJAC got quashed. Going back to the Supreme Court, when the same judge is the Chief Justice of India would have perhaps made no sense either in politics or in law, to revive the NJAC to come out with a new form of the same law and go back to the Supreme Court. But after all, it was a strategy, a political one, as well as a legal one, not to revive it again.

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Host: The NJAC had one major unexpected outcome: it prompted the judiciary to seriously look inwards. After years of ignoring warnings from eminent jurists, the court finally agreed to consider reforms to the collegium system. Anil Divan reflects in an interview to Rajya Sabha TV in 2016:

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Divan: The dissatisfaction with the collegium system is because it is secretive. People must know, and the lawyers must know, what are the eligibility criteria for selection of High Court judges, what are the criteria for shortlisting these judges. And secondly the application giving, your curriculum vitae must consider and must contain your relationships with powerful individuals, both in the judiciary like judges, retired judges, serving ministers or political leaders.

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Host: Within weeks of the judgement, the court listed the case for hearing again. They also invited suggestions from all quarters for improving the collegium system. The court was hit by a tsunami of responses: around 1500 suggestions, running into nearly 11,000 pages. The Supreme Court used these to formulate four broad guidelines.

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These included publicly declaring the criteria for appointments as well as a dedicated secretariat for managing processes related to appointments and a mechanism to deal with complaints. In December of 2015, the court directed the central government to consult the Chief Justice to finalise a Memorandum of Procedure, or a set of rules to govern the appointment process, based on the guidelines. But that was only the beginning of a new saga.

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[News Clip]

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The Supreme Court expressed deep displeasure and anguish at the way the central government is conducting the appointments of judges to the High Courts. The top court has pulled up the government saying this action of the government is bringing the judiciary to a grinding halt. At the same time the apex court has questioned as to why such cases that have been vetted and cleared by the collegium have been put in cold storage

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Host: That was a Times Now report from August 2016, a year after the NJAC was struck down. Far from closing the debate on the appointment process, the NJAC episode has only raised more questions.  In September of 2016, Justice Chelameswar, the dissenting judge in the NJAC ruling who later became part of the collegium, withdrew from its meetings for eight months. He said he would not attend unless the names being discussed were put on record. In 2019, citing the continuing defects in the collegium, Justice Kurian Joseph publicly regretted striking down the NJAC.

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Nine Supreme Court vacancies remained unfilled for nearly two years, between 2019 and 2021 because the collegium was unable to arrive at a consensus. And the new Memorandum of Procedure to govern judicial appointments is far from being finalised.

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On paper, judges continue to have the primary say in appointments. But in reality, the government has been able to stall and delay approvals. In the years since 2015, with or without an NJAC, in the public mind, some appointees have been seen as uncomfortably close to the executive. Has the government been able to take advantage of the secrecy that the collegium breeds to control the appointment process? Has it managed a victory despite losing the NJAC case? Lawyer and historian Abhinav Chandrachud, gave us a concise summary of the current status of appointments and the judgement’s broader legacy:

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Chandrachud: I think that the political executive has been begrudgingly appointing judges after the NJAC case. I kind of feel that the sense one gets is that the government is somewhat sulking after this judgement has been delivered. It's dragging its feet when recommendations are made for the appointment to the High Courts and to the Supreme Court. And well, there are instances, for example, where one wonders if the political executive is getting its way. But really, I guess it's too soon to say only a historian will be able to tell us 10 or 20 years from now, what the real legacy is.

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Host: Constitutional questions tend to have long arcs. The NJAC is only the latest chapter in a long saga over judicial appointments in India.

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The friction started when the court gave itself unparalleled power in the Basic Structure case. 

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The Indira Gandhi government responded by trying to control the judiciary by controlling appointments.

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Again, the court struck back by creating the collegium system.

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For more than two decades, it seemed that the question of who appoints judges had been settled until a new majority government came up with ideas to overhaul the system, and plunged the two branches into a new phase of tension. The legacy of the NJAC is still unclear, but one thing is certain – the last word on judicial appointments is yet to come. 

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You’ve been listening to Friend of the Court. Join us for our last and final episode, where we introduce you to the late Anil Divan as we get to know him and his impact on the legal profession and public law.

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Until then, I am your host Raghu Karnad.