IN October 2015, a five judge constitutional bench of the Supreme Court of India in Supreme Court Advocates on Record Association v Union of India (hereafter NJAC) declared Article 124A and the National Judicial Appointments Commission Act, 2014 unconstitutional as it damages or destroys the basic structure of the Constitution – more specifically the independence of the judiciary. All five judges on the bench expressed independent opinions.

Four of them agreed that the constitutional amendment and statute must fall. Justice Khehar wrote the lead opinion for the court where he concluded that as civil society in India was not yet in a position to constrain and fetter the excesses of the political executive, it was essential to preserve the independence of the judiciary in the selection and appointment of judges to prevent it from degenerating into a ‘spoils’ system – one where political patronage determined all institutional appointments. As the constitutional amendment and the statute gave the political executive a substantial role in the appointments process, Justice Khehar found that it damaged the basic feature of the independence of the judiciary.

Justice Chelameshwar agreed with the majority that the independence of the judiciary was a part of the basic structure of the Constitution. However, he identified the essential element of judicial independence in the appointment process to be that the ‘President (Executive) should not have an unfettered discretion in such appointment process… not that the opinion of the CJI (Collegium) should have primacy or dominance.’ Thus, he concluded that as the amendment and the statute did not grant unfettered discretion to the political executive they were constitutionally valid. At various points Justice Chelameshwar seemed to be reassured that the independence of the judiciary was best protected not by insulating the judiciary from other democratic institutions of government but rather by selecting only those with the highest integrity to occupy this office. He is unclear how we must settle on an institutional process to select these individuals of high virtue.

 

The NJAC judgment has received strident and hyperbolic criticism. A commentator described it as displaying a ‘lack of respect for the people of India’ and accused the court of suffering from a ‘messiah complex’. Less surprisingly the Finance Minister, Arun Jaitley, suggested that the judgment undid the ‘sovereign will of the people.’ The tone and content of this criticism is particularly striking when one considers how legally unremarkable the judgment is.

The NJAC judgment responds to two key legal questions. First, can the Supreme Court strike down a constitutional amendment or statute on the ground that it damages or destroys the basic structure of the Constitution? A 13 judge bench of the Supreme Court held in Kesavananda Bharati v State of Kerala (1973) that it could do so. Second, is independence of the judiciary a basic feature of the Constitution and does this entail the primacy of a collegium of judges in judicial appointments? A nine judge bench of the Supreme Court held this to be the case in Supreme Court Advocates on Record Association v Union of India (1993). So did these commentators expect a bold activist five judge bench in NJAC to distinguish or otherwise avoid these binding precedents and uphold the challenged constitutional amendment and statute?

 

Maybe this conclusion about NJAC is too quick or misunderstands the nature of the criticism that the judgment has drawn. Maybe the court is being criticized because it misapplies the basic structure doctrine or because, though legally unremarkable, the decision is politically controversial and ultimately illegitimate. I will review both these possibilities in turn. The disagreement between the majority and minority opinions in NJAC are best understood to be about two aspects of the application of the basic structure doctrine: the identification of basic features of the Constitution and the standard of review that a court should apply in these cases.

The Supreme Court has identified the independence of the judiciary to be a basic feature of the Constitution since Indira Gandhi v Raj Narain (1975). In NJAC, the court is unclear what the basic feature at stake is: separation of powers; independence of the judiciary; primacy of the judiciary in the appointment of Supreme Court and High Court judges. While the majority identifies the primacy of the judiciary to be a basic feature, the minority isolates the independence of the judiciary as a basic feature. Justice Chelameshwar concludes that as there are several facets of the principle of independence of the judiciary – protected constitutional jurisdiction, institutional autonomy of the courts in everyday functioning and primacy of the judiciary in appointments – even if primacy of the judiciary is dislodged by these constitutional amendments the principle of independence of the judiciary survives in a modified form in the Constitution.

 

This divergence between the majority and minority arose from confusion about how basic features should be identified and their role in constitutional adjudication. For reasons of elegance and consistency, it is best to state basic features of the Constitution at the broadest level of generality: in this case, separation of powers. The court’s extensive recourse to independence of the judiciary and primacy of the judiciary is best seen as being about the derived norms that apply to the case at hand. Basic features of the Constitution are constitutional principles that play several roles in adjudication: in a few cases they operate independently and offer reasons for decision; in most cases they yield derivative norms that settle the case at hand; in a third set of cases they may help judges fill gaps or resolve ambiguity or indeterminacy in the interpretation of other constitutional rules.

In NJAC the majority took the view that the primacy of the judiciary in the selection and appointment of judges in the higher judiciary was the derivative norm that lies at the core of the independence of the judiciary. If this primacy was denied then the judiciary would inevitably become a plaything in the hands of the political executive. Seen in this light, for Justice Khehar the institutional edifice of the separation of powers rests on the maintenance of the primacy of the judiciary in the composition of the higher judiciary. This conclusion is not a failure to identify the basic feature at the right level of generality, but a more modest inability to clarify the relationship between basic features of the Constitution and the derivative norms that decisively shape the outcome in this particular case.

 

In my earlier work on the basic structure doctrine I argued that the ‘damage or destroy’ standard of review in basic structure cases seeks to assess whether the state action erases the protected basic feature from the Constitution. Basic structure review is designed to have a different standard of scrutiny from that employed in fundamental rights review. A court will intervene if any fundamental right is ‘abridged or taken away’, but under basic structure review the basic features of the Constitution should be ‘damaged or destroyed’. In other words, a court is likely to strike down state action in basic structure cases in only the most egregious cases. Is NJAC such a case?

Justice Chelameshwar keenly points out in his dissent that on the face of it the constitutional amendment and the statute do not exclude the judiciary from participating in the selection process. Justice Khehar’s majority opinion is unmoved by this view as he construes the composition rules and the protocol of decision making in the proposed commission to marginalize the judiciary by putting the political executive in effective command. This difference in the appreciation of the factual and legal consequences of these amendments rests on divergent political and institutional understandings of contemporary India. Does Justice Khehar’s majority opinion take too permissive a view of the standard of review in basic structure review cases?

 

It is fair to observe that the Supreme Court has applied the ‘damage or destroy’ standard overzealously to protect the independence of the judiciary in at least four domains. In the last two decades it has intervened in the selection of judges of the district court, tribunals and regulators; their conditions of service including payment of salaries; the robust protection of the constitutional jurisdiction from any encroachment by the legislature as well as the vigorous defence of judicial dominance over the executive branch in administrative and statutory courts. Some critics allege that these cases are instances of institutional self-dealing where the court is simply protecting and advancing its own interests. However, when the legislature and executive systematically underinvests in the court system leaving it in a state of despair, the court’s intervention in this field is hardly a case of self-aggrandizement and appears to be more benign.

In social and political conditions where rule of law is weakly entrenched in a democracy, the case for judicial protection is more easily made. Justice Khehar’s reminder that India is not ‘emergency proof’ is indicative of the threat he perceives to the independence of the judiciary and the separation of powers by allowing any interference by the executive. Seen in this perspective, there is a danger that the amendments and the statute damage or destroy the separation of powers in the Constitution.

I conclude this essay by reviewing the criticism that NJAC is politically controversial and devoid of political legitimacy. This criticism proceeds on the premise that the basic structure doctrine was a restraint only against some forms of constitutional amendment. As the judicial appointments commissions was enacted by a bipartisan majority and the ratification of the states, the basic structure review should be applied in a restrained manner. This argument fundamentally misunderstands the basic structure doctrine as it is precisely to these conditions of overwhelming parliamentary majorities that the doctrine responds. The claim that Parliament represents the sovereign will of the people was rejected by Kesavananda in 1975 and cannot be resurrected in 2015.

 

A second source of political controversy is sustained hostility and strategic ambiguity displayed by the government, giving rise to doubts about the extent to which they will comply with the NJAC opinion. Ironically, on 26 November 2015, the NDA government celebrated Constitution Day with a two day parliamentary debate to pay tribute to the founding members of the Constituent Assembly and to renew our common pledge to uphold the Constitution. This homage to constitutional values has not resulted in respect for the decision of the Supreme Court on judicial appointments.

On 15 December 2015, the Supreme Court urged the government to develop a new Memorandum of Procedure on the Appointment of Judges. The final impact of NJAC on India’s constitutional democracy can be judged only when this new memorandum comes into force in 2016. As we await this new memorandum it is clear that the longer-term political legitimacy of NJAC may well turn on the ability of the court to reform the collegium process to make the higher judiciary more transparent and accountable to the people. If it achieves the ability to retain the trust of the people through direct participation, then it can truly emerge as a counter-democratic institution which enjoys higher public trust than the executive and the legislature.