APPOINTMENT OF JUDGES

Judicial Primacy and

the Basic Structure
A Legal Analysis of the NJAC Judgment
Arghya Sengupta

This article is a legal analysis of

the Supreme Court judgment in
the appointment of judges case. It
argues that a majority of the
judges did not hold judicial
primacy to be part of the basic
structure, as has been commonly
misunderstood. Further, their
application of their understanding
of judicial primacy to strike down
the presence of the Union Law
Minister and eminent persons on
the National Judicial Appointments
Commission is flawed.
Consequently, the judgment has
no precedential value were
Parliament to attempt fresh
reform to bring in transparency in
judicial appointments.

Arghya Sengupta (arghya.sengupta@gmail.com)

is research director, Vidhi Centre for Legal
Policy and has a DPhil on the subject
Independence and Accountability of the
Indian Higher Judiciary from the University
of Oxford. He appeared for the Union of India
in the NJAC case.
Economic & Political Weekly

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NOVEMBER 28, 2015

he Supreme Court of India in

Supreme Court Advocates-on-Record
Association and others vs Union of
India and others (hereinafter, the NJAC
case) struck down the Constitution (99th
Amendment) Act, 2014 (hereinafter 99th
Amendment) and the National Judicial
Appointments Commission Act, 2014
(NJAC Act) as unconstitutional. These two
enactments had collectively established
the National Judicial Appointments Commission (NJAC). The commission was to
have a determinative role in the appointment of judges to the Supreme Court and
High Courts. Its establishment by Parliament was in response to the criticisms
of the previous collegium method of
appointments, by which senior justices
of the Supreme Court had the last word
on who occupied judicial office. The perception of nepotism, opacity and judicial
hegemony in appointments was sought
to be undone by a bipartisan NJAC.
However, it was not to be. The Constitution bench of the Supreme Court, by a
majority of 4:1 (Justices Khehar, Lokur,
Goel and Joseph in the majority; Justice
Chelameswar dissenting), found the NJAC
to be violative of the basic structure
doctrine and hence unconstitutional.
Much has been written on the distrust
of the political class, specifically the
present government, that animates the
views of the majority judges. To what
extent such distrust exists, and whether
its expression in a constitutional law
dispute is justified, are important questions, but not the subject of enquiry of
this article. Instead the article is a critical
enquiry into the concept and application
of the primacy of judges in the appointment of judges, which is central to the
Court holding the NJAC to be violative of
the basic structure.
vol l no 48

The article makes two main arguments.

First, drawing from Justices Khehar and
Goels views, it argues that there is no
sound normative reasoning in their
opinions as to why primacy of judges in
appointment of judges is part of the basic
structure. Further, irrespective of the
merits of the reasoning, it cannot be the
ratio decidendi of this case that judicial
primacy is part of the basic structure
since only Justices Khehar and Goel have
held it to be so. Thus it lacks the clear
majority of three judges necessary to be
binding in law as precedent. Second, the
net effect of the four majority views is
to render a portion of Article 124 and
Article 217, in substance, unamendable.
Articles 124 and 217 deal with appointment of judges to the Supreme Court
and High Courts respectively and lay
down a process of mandatory consultation to be adopted by the President
in this regard. This judgment makes a
segment of such mandatory consultation,
that is, the requirement to consult the
Chief Justice of India (CJI), part of the
basic structure of the Constitution and
consequently immune to amendment.
This makes the NJAC judgment per
incuriam the judgment of 13 judges of the
Supreme Court in Kesavananda Bharati vs
State of Kerala (hereinafter Kesavananda
Bharati (1973) 4 SCC 225), which specifically permitted any provision or part of
the Constitution to be amended. Thus the
judgment has no precedential value for future cases in Court. Similarly, were Parliament to consider fresh amendments to the
judicial appointments process, this judgment would be of limited consequence.
Primacy: Part of Basic Structure?
Justice Khehar in his judgment strikes
down the 99th Amendment for violating
judicial primacy and thereby abrogating
the basic structure of the Constitution
(para 158). The key reasoning he provides
as to why judicial primacy is part of
the basic structure is twofold. First,
Articles 124 and 217, dealing with appointment of judges to the Supreme Court and
High Court, respectively, have been interpreted by the Court as requiring judicial
primacy to protect judicial independence
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APPOINTMENT OF JUDGES

in appointments. Second, that a longestablished practice of according primacy

to the opinion of the CJI has existed.
Justice Goel, who follows a similar line
of reasoning, supplements this view by
helpfully spelling out what is meant by
primacythe power to initiate a proposal for appointment and the last word on
who should/should not be appointed
should both belong only to the judiciary.
Both judges also explain why such judicial primacy is perfectly consistent with
the views of Ambedkar expressed in the
Constituent Assembly.
Three Grave Flaws
There are three grave flaws in such reasoning. First, the fact that Articles 124 and
217 have been interpreted by the Supreme Court to require judicial primacy to
protect judicial independence in appointment cannot per se make primacy part of
the basic structure of the Constitution. If
that were so, then the fact that the right
to sleep without undue disturbance from
the state has been held to be part of the
right to life under Article 21,1 which is
part of the basic structure,2 should by the
same logic make such right to sleep a part
of the basic structure. Though this inference is absurd, resting an argument of
the components of the basic structure
doctrine simply on how particular provisions of the Constitution have been interpreted over time is equally absurd. Further
normative reasoning is needed as to why
particular interpretations will comprise
the basic structure whereas other interpretations will not. The majority views,
however, shed no light on what such arguments might look like.
Second, even if it were to be assumed
that an additional factor that makes
judicial primacy in appointments part of
the basic structure is its long-established
practice, there is a further logical fallacy
which besets this argument. If practice,
over a period of time, can determine
whether any particular value, in this
case, judicial primacy, is to be part of the
basic structure, then the question that
arises is whether the basic structure is as
basic as it purports to be. Given that it is
a well-established doctrine of constitutional law that the basic structure is that
core of the Constitution without which
28

the Constitution ceases to be itself, the

concept of an evolving basic structure is
an anomaly. This is especially because
the basic structure doctrine is essentially
a limitation on the amending power of
Parliamentif at any given point of time
it is not known to Parliament what it is
expected to adhere to, then that raises
serious questions about whether the rule
of law is morphing into a rule of men, in
this casejudges. This paradox of an
evolving basic structure is a legacy of
this judgment and one whose detrimental
effect on the rule of law, another pillar
of the same basic structure, has not been
fully appreciated.
Third, the attempt by Justices Khehar
and Goel to demonstrate why primacy
of the judiciary is consistent with the
spirit of Ambedkar and the Constituent
Assembly debates is baffling. It is undoubtedly true that the purpose of incorporating the provision of consultation
with the CJI in the appointment of judges
was to prevent an unfettered role for the
executive. However there is a considerable logical distance to traverse between
the lack of executive primacy in appointment of judges, which Ambedkar clearly
intended, and judicial primacy being
part of the basic structure of the Constitution, which was not even within the
purview of discussion in the Constituent
Assembly. Further, even though the CJI
was brought into the appointments process to provide an apolitical view on the
person sought to be appointed, Ambedkar
is clear that it would be dangerous to
give him/her a veto over appointments
(Constituent Assembly Debates, 24 May
1949). If judicial primacy, as Justice
Goel points out, includes the last word,
then that is tantamount to a veto, and
squarely contrary to Ambedkars view.
The only possible counterargument to
this view is that the veto now belongs to a
judicial collegium rather than the CJI as an
individual as Ambedkar meant. But such
an argument would require a defence of
the judicial collegium, which was entirely
unheard of till the early 1980s, as part of
the original constitutional scheme. Even
to the most ardent defenders of the collegium, this is an interpretive step too far.
In the final analysis, Justices Khehar
and Goel walk into the same trap of

primacy that has befuddled judges since

Justice Tulzapurkars passionate but
unhelpful endorsement of the concept in
the process of appointing judges in SP
Gupta vs Union of India (The First Judges
Case; 1981 Supp SCC 87). For Tulzapurkar J
in his dissenting judgment, the converse
of lack of executive primacy, which he
felt would violate judicial independence
and that his brother judges in the majority
were perceived to have upheld, would be
primacy of the CJI.
However this inference is flawed
and flows from a misreading of the
majority view in The First Judges Case
(Justices Bhagwati, Fazl Ali, Desai and
Venkataramiah). The majority did not
assert untrammelled executive primacy,
as has been commonly misunderstood
since. On the contrary, they held that
neither the executive nor the judiciary
should have pre-eminence in the matter
of appointment of judges. The view of the
CJI should ordinarily be accepted by the
President, but if not, reasons would have to
be provided why not so. This is consistent
with the views adopted by the Supreme
Court earlier, in different contexts, in Union
of India vs Sankal Chand Sheth ((1977) 4
SCC 193; transfer of judges) and Shamsher
Singh vs State of Punjab, ((1974) 2 SCC 831;
appointment of subordinate judges).
Such a view also conforms with the
salient rule of administrative law that
the decision of the President, who as per
Articles 124 and 217 is the appointing
authority, would be judicially reviewable
for being based on improper purposes,
irrelevant considerations or being simply
arbitrary. In this context, primacy was an
unhelpful, and erroneous, introduction
to the jurisprudence of judicial appointments. Justices Khehar and Goel have
compounded this error by simply raising
it to the status of the basic structure of
the Constitution without providing any
convincing justification.
To the contrary, and something not
widely noticed, Justice Lokur has refused
to consider primacy to be part of the basic
structure of the Constitution. In fact, he
has expressed his discomfort with the
concept of primacy and has instead
considered appointment of judges a
shared responsibility of the executive
and the judiciary (footnote 357, para 177).

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APPOINTMENT OF JUDGES

Further, Justice Joseph has not opined on

primacy at all. He has simply endorsed the
views of his brother judges, who have
expressed diametrically opposite views
on it (p 901). As a result, the most logical
inference from the lack of clarity on this
matter is that there is no unambiguous
majority view in the NJAC judgment that
primacy of judges in appointment is part
of the basic structure of the Constitution.
Abstruse Legal Reasoning
Despite expressing his discomfort with
primacy, Justice Lokur in a surprising
and unjustifiable move considers the
99th Amendment and NJAC Act to be a
package deal as the attorney-general
had remarked. He then proceeds to deal
with the composition of the NJAC (in the
amendment) together with the procedure for voting, including the veto power
to any two members of the NJAC (in the
NJAC Act) to strike down the 99th
Amendment (para 451).
Justice Lokurs primary reason for
striking down the 99th Amendment is
not because it violates judicial primacy
but rather because non-judicial members
have a veto which abrogates the scheme
of the original Article 124 that envisaged
mandatory consultation with the CJI.
This inference is made possible by Justice
Lokurs package deal metaphor. While
Justice Lokur is correct in attributing the
phrase package deal to the attorneygeneral who had used the term to describe the two enactments, he is mistaken
in using this as an aid to striking down
the constitutional amendment based on
a provision in the NJAC Act. The key
flaw is evidenced by his statement in
paragraph 451:
It was therefore a package deal presented
to the country in which the 99th Constitution Amendment Act and the NJAC Act were
so interlinked that one could not operate
without reference to the other.

While the NJAC Act cannot operate

without reference to the 99th Amendment, the converse is simply not true.
One can envisage a situation when the
Constitution requires all appointments to
be made by the President on the recommendation of the NJAC. The procedures
and other details of the NJAC could be
established by regulations or a future
Economic & Political Weekly

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NOVEMBER 28, 2015

legislation, were the NJAC Act to be

struck down. Hence to strike down the
incorporation of eminent persons and
the Union Minister of Law primarily
because they will have the power to
collectively veto what the judges say
(assuming they speak in one voice) is
plainly flawed.
This difference apart, Justice Lokur is
one with Justices Khehar and Goel in
finding the presence of the law minister
on the NJAC as violative of independence
of the judiciary. Though his argument is
largely historical, the core reasoning, as
elaborated by Justice Khehar, essentially
hinges on a conflict of interest issue
given that the government is the largest
litigant, it is anomalous to have the law
minister having a role in judicial selection, especially if he can, together with
one other member, exercise a veto on
such selection. Keeping the issue of
veto aside, since it conflates issues of
composition and procedure, the conflict
of interest argument is prima facie an
attractive one.
It is true that the union government
is the largest litigant in India, as are
national governments in other parts of
the world. At the same time it is a platitude that justice delivery must be fair
and impartial. The only sequitur to this
can reasonably be that the executive
cannot have a determinative role in
judicial selection.
The presence of the law minister as
one member out of six on the NJAC does
not give the government a determinative
role in selection at all. Further, there is
no principled distinction between the
law minister providing inputs (which
Justice Lokur expressly allows, para 523)
and having a single vote as the 99th
Amendment provided. Either a conflict
of interest principle will prevent any role
in which case both are prohibited, or a
determinative role, which the law minister
anyway did not have in the 99th Amendment. There is no principled halfway
house between the two.
Insofar as the presence of eminent
persons on the NJAC is concerned, the
majority judges are in clear disagreement. Justices Khehar and Goel strike
down their presence for being violative of
judicial primacy. Again their argument is
vol l no 48

premised heavily on the eminent persons

exercising a veto, which is indefensible
for the reasons argued above. Even
otherwise, they find the lack of qualification of eminent persons to be vague
and hence unconstitutional. If vagueness
were to be a ground for striking down
constitutional amendments then as Justice
Chelameswar rightly notes in his dissenting judgment, it amounts to judicially
mandating inflexible standards of constitutional drafting (para 111).
It is judicial impropriety to strike
down a constitutional amendment for
being vague without even attempting to
read it down, irrespective of what the
parties have argued. Fortunately, however, Justice Lokur does not share this
view and expressly allows eminent persons, of whatever qualification, to serve
on the NJAC. His real cause for unhappiness (para 509) as pointed out earlier is
in giving eminent persons the veto. With
Justice Joseph having expressed no firm
view in this matter, consequently there
is no majority view in this judgment
insofar as inclusion of appropriately
qualified eminent persons as equal participants in a future NJAC.
What is disconcerting about the discussion of eminent persons is the implicit
belief that only judges are best able
to select future judges. While this is
certainly arguable, it is by no means
beyond the pale of contestation. One can
argue perfectly reasonably that there is
little point in having a technically proficient judge who is of doubtful integrity
or a judge perfectly capable of appreciating complex legal argument but no ability
to manage time or people. The complete
lack of normative reasoning as to why
it is primarily judges who can assess
such holistic qualities in future judges, is
conspicuous by its absence. Specifically
the summary dismissal of comparative
examples from other countries which
consider it worthwhile to incorporate
civil society participation in judicial appointments, is striking. This is aptly
demonstrated by Justice Lokurs inference from a reading of the unamended
provisions of the Constitutional Reform
Act, 2005 in England.
Justice Lokur holds, on the basis of
select legal literature, that despite a
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APPOINTMENT OF JUDGES

commission mandated to include nonlegally qualified persons selecting judges,

it is impossible to contravene the wishes
of the judiciary in appointment. It is
precisely this inference which when
translated to India ought to have led to
the conclusion that the NJAC having
only two eminent persons out of six as
members would not affect the determinative view of the judiciary. Curiously,
however, Justice Lokurs conclusion is
rather cryptic: So much for the appointment process in the UK and the judges
appointing judges criticism in India!
(para 477). It is difficult to engage with
an exclamatory remark of this nature as
a matter of constitutional law.
Golak Nath Revisited
The usage of the veto argument to strike
down the 99th Amendment is flawed for
another reason. Since Justice Lokur does
not subscribe to the basic structure
doctrine, including judicial primacy in
appointment, there is no question of the
veto affecting such primacy. In fact, what
it does affect is the mandatory consultation
between the President and the CJI and the
predominant role given to the CJI by the
drafters of the Constitution. This amounts
to a view that mandatory consultation
between the President and the CJI is part
of the basic structure and cannot be altered
(para 530). This is a proposition that is
one with the basis for Justices Khehar
and Goels views (consequently, one can
conjecture, endorsed by Justice Joseph),
that the original constitutional scheme
enshrined in Articles 124 and 217 considered mandatory consultation between the
President and CJI to be of paramount importance. Had this foundation not existed,
no possible proposition of judicial primacy
in appointments could have arisen.
Hence per se this scheme of mandatory
consultation between the President and
CJI laid down in the unamended Articles
124 and 217 would be part of the basic
structure of the Constitution.
It is this proposition that makes the
NJAC judgment analogous to the ratio in
Golak Nath vs State of Punjab (hereinafter
Golak Nath; AIR 1967 SC 1643). In Golak
Nath, an 11-judge bench of the Supreme
Court held that no fundamental right
could be amended by Parliament. Space
30

precludes a detailing of the reasons for

this view. However this ratio was specifically overruled by a 13-judge bench of the
Supreme Court in Kesavananda Bharati,
which held that no part or provision of
the Constitution could be immune from
amendment, subject to the basic structure
of the Constitution being preserved.3 It
was also clear that the basic structure
would have to be drawn from various
provisions of the Constitution and could
not make any particular textual provision
or part thereof, immune to amendment.
The NJAC judgment, in effect, canvasses
a proposition analogous to the proposition
in Golak Nath overruled by Kesavananda.
This is because it finds the basic structure
to be the mandatory process of consultation with the CJI, enshrined in Articles 124
and 217. As a consequence, the relevant
part of both articles cannot be altered
by constitutional amendment. Hence, in
effect, it renders the mandatory process
of consultation between the President
and the CJI in Articles 124 and 217, that is,
one portion of these provisions, immune
from amendment.
It must be admitted that it is however
different from Golak Nath in one respect
it does not prescribe a blanket bar on
amendment of an entire part of the Constitution (Part III, as was the case in Golak
Nath). However, this difference is irrelevant since the effect of the judgment is
analogous. Take a thought experimentif
Parliament were to amend Article 124 to
remove mandatory consultation with the
CJI and replace it only with concurrence
of the three senior-most judges of the
Supreme Court not including the CJI. Following the logic of this judgment, though
judicial primacy would be maintained,
it is arguable that this amendment too
would violate the basic structure for taking away mandatory consultation with the
CJI and his historical and conventional
role in appointments. Thus, in effect, this
judgment renders a key portion of Articles
124 and 217, in substance, unamendable.

Goel hold it to be so, Justice Lokur does

not. Justice Joseph, the fourth majority
judge simply endorses the views of the
others without expressly considering
primacy to be part of the basic structure.
Thus there is no majority holding in this
case that primacy of judges in appointment is part of the basic structure. Second,
Justice Lokurs concurring view which
rightly traces the source of judicial primacy
in appointment to the exalted role played
by the CJI hitherto in the appointments
process, a view shared by the remaining
majority judges, makes a portion of Articles 124 and 217 itself the basic structure
of the Constitution. This is per incuriam
Kesavananda Bharati and hence has no
precedential value. Taken together, both
these conclusions make it legally tenable
for Parliament to propound a similarly
constituted judicial appointments commission in the future, with minor changes, disregarding the elaborately reasoned
views of the majority judges on judicial
primacy and the basic structure.
Finally, in view of the questionable
reasoning, non sequiturs and unsubstantiated assertions that suffuse the majority
views in a decision of such great constitutional significance, history will likely
rank it at par with ADM Jabalpur vs Shivkant Shukla ((1976) 2 SCC 521), the Supreme Courts humiliating genuflection
before the government during the Emergency, as one of the most poorly reasoned
judgments handed down by the Court.
Whereas ADM Jabalpur was the consequence of too little independence, the
NJAC judgment is the consequence of too
much of it. Both, as is clear today, are
equal enemies of introspection and
sound legal reasoning.
Notes
1

In re: Ramlila Maidan Incident (2012), 5 SCC 1,

para 318 (Per Chauhan J).
IR Coelho vs State of Tamil Nadu (2007), 2 SCC 1.
Proposition (vii), Summary of Conclusions,
para 1537, also in opinion of Khanna J, para 1434.

2
3

Conclusions

available at

There are three conclusions from a close

legal analysis of the judgment: First, judicial primacy has not been unambiguously
held to be part of the basic structure of the
Constitution. Though Justices Khehar and

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