"Operation Successful; Patient Dead": A Troubling New Clause Allows the Government to Reject a Judge’s Appointment on the Grounds of National Security

On 16 October 2015, Justice JS Khehar, the current Chief Justice of India, led a five-member bench at the Supreme Court that struck down the ninety-ninth constitutional amendment passed in both houses of the parliament and ratified by 16 state legislatures, on the grounds that it infringed upon the independence of the judiciary. The ninety-ninth constitutional amendment paved the way for the National Judicial Appointments Commission, or the NJAC. The commission was intended to replace the collegium system of appointing judges to the higher judiciary, under which the chief justice of India and their four senior-most colleagues select judges to the high courts and Supreme Court of India. In his leading opinion in the four-judge majority judgement, Khehar was scathingly critical of the NJAC—which would have included members of the government. “The political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary,” he noted, “Reciprocity, and feelings of pay back to the political-executive would be disastrous to ‘independence of the judiciary.’”

Khehar did however tell the government to “help us improve and better the system.” In a subsequent hearing in December 2015, he directed the governmentto come up with a new Memorandum of Procedure (MoP). Since then, the government and the collegium have been butting heads over the formulation of a new MoP for the appointment of judges. Among the issues that marked this stalemate was the government’s insistence on a clause that would block the appointment of a judge on the grounds of “national security.” In a story published on 15 March 2017, the Times of India reported that this conflict has been resolved. According to the report, the collegium, led by Khehar himself, conceded to the government’s demand, ostensibly giving it a “veto power to reject a name recommended by the collegium for appointment as judge.”

This is an unprecedented move with extraordinary consequences. The finalisation of the MoP will certainly fill vacancies in India’s high courts—which are functioning at less than 60 percent of their sanctioned strength—and help reduce the backlog of cases across the country. But it has hardly brought any cheer to the legal fraternity. Kamini Jaiswal, a senior lawyer practising in the Supreme Court, told me that this resolution is an instance of, “Operation successful; patient dead.”

“This clause is a complete departure from the idea of the primacy of the judiciary,” AP Shah, the former chief justice of the Delhi High Court, told me. “It is giving the executive a power that was not envisaged in the Judges Cases or even the NJAC Act.” It is also a complete departure from the stand Khehar had taken on the issue, so clearly articulated in his opinion: “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary.”

The Supreme Court’s judgment in the case regarding the NJAC set the government and the judiciary on a collision course. In a Facebook post that he wrote soon after the ruling, Finance Minister Arun Jaitley deemed the logic informing the court’s decision “erroneous,” and said that the Indian democracy could not be a “tyranny of the unelected.” In April 2016, TS Thakur, who was then the chief justice of India, broke down several times while he was speaking at a public event that Prime Minister Narendra Modi was attending as well. Thakur blamed the government for stalling the appointment of judges to higher courts and said that it should increase the number of judges from 21,000 to 40,000. On 25 November, during a function that was held to commemorate Constitution Day—which is observed on 26 November—Law Minister Ravi Shankar Prasad accused the Supreme Court of failing the country during the Emergency. On the same day, Attorney General Mukul Rohtagi, speaking in the presence of both Thakur and Khehar, said that “all including judiciary must recognise there is ‘lakshman rekha’ and be ready for introspection.” Khehar responded by saying that “the judiciary is mandated to shield all persons, citizens and non-citizens alike, against discrimination and abuse of state power.”

The tussle that was reflected in the aftermath of the NJAC judgment is only the latest leg of a long and complicated struggle between the government and the judiciary for dominance in the process of judicial appointments. In 1964, Justice Hidayatullah, a former Supreme Court judge, commented that it would be difficult to think that the assurances made in the constitution were the “play things of a special majority.” Subsequently, in April 1973, during the regime of the former prime minister Indira Gandhi, the Supreme Court checked the government’s attempts to impose the supremacy of the parliament over the constitution. In a landmark decision of the court in the case of Kesavananda Bharati v State of Kerala, a 13-judge bench ruled that the parliament did not have the power to “damage or destroy the basic structure of the Constitution” through amendments.  During the 1970s, Gandhi’s arbitrary exercise of power to appoint and transfer judges shattered the norms and precedents of judicial appointments. The Supreme Court modified the process to appoint judges over the course of three cases in 1981, 1993 and 1998—cumulatively called the Judges Cases—eventually usurping power almost entirely from the government.

The collegium system that Khehar had sided with in the NJAC judgment was laid down by the Supreme Court in 1993, in its judgment of what is now called the Second Judges Case. It does not find any mention in either the constituent assembly debates or the constitution. (The constitution broadly states that judges to the Supreme Court are to be appointed by the president in consultation with the chief justice of India and such other judges that he or she deems fit. Similarly, judges to the high courts would also be appointed by the president, after he or she has consulted the chief justice of India, the governor of the concerned state and the chief justice of the concerned high court.)

While the collegium has safeguarded the judiciary from any overt political pressures, its failings have been multifarious. Several former judges from the Supreme Court and high courts have alleged that the decisions of the collegium have been marred by instances of corruption, nepotism and personal vendettas. In November 2011, The Telegraph reported that Ruma Pal, a former Supreme Court judge, "tore into the process of appointment of judges to the Supreme Court" during a public lecture. The story  went on to note that according to Pal, the criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary. Suhrith Parthasarthy, an advocate in the Madras High Court, noted in an essay for The Caravan, “The process is notoriously secretive, leaving no room for public scrutiny of individual nominees.” In its ruling regarding the NJAC, even the constitution bench admitted that the current system needs to be improved.

The NJAC Act had invoked this tumultuous history. In calling it unconstitutional, Khehar had clearly favoured judicial supremacy in appointments, as envisaged in the Second Judges Case. However, the judgement was criticised on several fronts. These included the decision to stretch the scope of the basic structure doctrine to include the primacy of the judiciary in judicial appointments and the fact that the Supreme Court had missed an opportunity to set up a transparent and accountable body for judicial appointments. The NJAC would have comprised the chief justice of India, the two senior-most judges of the Supreme Court, the law minister and two “eminent persons” who would be nominated for a three-year term by a committee consisting of the chief justice, the prime minister and the leader of opposition in the Lok Sabha. Many members of the legal fraternity that I met argued that, since the Supreme Court could have weighed in on the composition of the NJAC, the bench could have snipped or curtailed the role of the executive branch from the six-member body.

The clause on national security that may now govern the appointment of judges could well be vulnerable to the very abuse of state power that Khehar had referred to. The collegium, according to the Times of India report, has asked that “specific reasons for application of the clause” be recorded, but the ambit of this clause is potentially huge. “It is such a vague clause that everything can come under its scope,” Sanjay Hegde, a senior advocate at the Supreme Court, said. “Under this government, the fine line between nationalism and national security is disappearing very fast,” he continued. “It is not inconceivable that they will start disqualifying candidates on the grounds that the person has attended JNU [Jawaharlal Nehru University].” Hegde added: “What it provides for is that even if a good lawyer, who has a background in activism, is being considered for appointment in either the high court or the supreme court, the government can invoke the national security clause to block that appointment.” What is even more worrying, he said, “is that the existence of such a clause will deter many able people from even trying to become a judge—no one wants that label of being anti-national on their name.”

In this context, Khehar’s words from the NJAC judgment can be read as a warning about the time to come: “The sensitivity of selecting Judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts.”

It is a genuine surprise to some that the clause regarding national security is being inserted while Khehar occupies the office of the chief justice of India, specially since the thrust of his opinion in the NJAC judgment suggested that there was a need to safeguard the judiciary from such interference by the executive. “The deliberations have been going on for over a year—since Justice Thakur’s tenure—and Justice Khehar has been a part of them,” Jaiswal said. “Now, one has to ask what has changed for him to now agree to this clause. It is a concession made by the judiciary; the government hasn’t budged from its position one bit.”