Chief Justice of India Shri H.L. Dattu has taken an unprecedented step of refusing to join a committee constituted under Article 124A(1)(d) of the Constitution to nominate two eminent persons as members of the National Judicial Appointments Commission (NJAC). He is learnt to have informed the Prime Minister Shri Narendra Modi that he would not join the said committee until the Supreme Court decided on the validity of the new NJAC system to appoint judges. This committee consists of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People (Lok Sabha). It is respectfully submitted that this refusal by the CJI is a sort of constitutional impropriety leading to a constitutional crisis. It is also a violation of the oath made by the CJI while entering upon his office as required under clause (6) of Article 124 of the Constitution.
The Constitution (99th Amendment) Act, 2014, was passed by the Parliament and on its ratification by the legislatures of not less than one-half of the states, as required under the Proviso to clause (2) of Article 368, it received the assent of the President on 31st December 2014. This constitutional amendment created NJAC, inter alia, for recommending persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief justices of the high courts and other judges of the high courts. Recently, this Constitutional Amendment was brought into force by way of a notification in the Official Gazette. Thus, the amendments made to the Constitution by the aforesaid Constitution (99th Amendment) Act, 2014, have formally and officially become part of the Constitution, including the newly inserted Article 124A.
Clause (1) of Article 124A lays down as under:
“124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:––
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;
(c) the Union Minister in charge of Law and Justice––Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.”
Thus, the NJAC comprises, inter alia, of two eminent persons who are required to be nominated by the committee comprising of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People (Lok Sabha). It is pertinent to mention that the CJI is a member of the said committee in an administrative capacity and not in a judicial capacity.
Since the aforesaid Article 124A is now officially a part of the Constitution, the aforesaid committee is now a mandate of the Constitution.
It is, of course, true that several writ petitions have been filed before the Supreme Court challenging the constitutional validity of the aforesaid 99th Constitutional Amendment mainly on the touchstone of the doctrine of basic features of the Constitution which requires that certain basic features of the Constitution cannot be abridged or taken away. At present, these writ petitions are being heard in the Supreme Court by a 5-judge Constitution bench, and previously these writ petitions were heard by a 3-judge bench of the Supreme Court. However, the operation of the aforesaid 99th Constitutional Amendment has not been stayed by either of the aforesaid benches of the Supreme Court. Accordingly, as of today, Article 124A that was inserted in the Constitution by the aforesaid Constitution (99th Amendment) Act, 2014, is perfectly valid and is a part of the Constitution. Therefore, this constitutional provision is required to be honoured by everyone including the Chief Justice of India. Of course, if the operation of the aforesaid Constitutional Amendment had been stayed by an interim order of a bench of the Supreme Court hearing the said writ petitions, the situation would have been different. In the absence of any such stay order, Article 124A is very much a part of the Constitution and is binding on all authorities, including the Chief Justice of India. Nobody can disobey its mandate (till it exists in the statute books), much less the Chief Justice of India acting in an administrative capacity.
Now, clause (6) of Article 124 of the Constitution mandates as under:
“(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.”
Form IV of the Third Schedule to the Constitution lays down the form of oath or affirmation to be made by the judges of the Supreme Court and the Comptroller and Auditor-General of India as under:
“Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:—
“I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India)
swear in the name of God
do—————————————that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”
Thus, the Chief Justice of India is legally and constitutionally bound to bear true faith and allegiance to the Constitution of India as by law established, and he is also required to uphold the Constitution and the laws. Justice Shri H.L. Dattu has also made an oath or affirmation to the above effect while entering upon the office of the Chief Justice of India, therefore he is also constitutionally bound by the said oath/affirmation.
As mentioned above, since the Constitution (99th Amendment) Act, 2014, has validly amended the Constitution and has, inter alia, inserted Article 124A in the Constitution, this Article forms part of the Constitution of India as by law established. This legal position holds true as of today since there is no valid decision of the Supreme Court either striking down or staying the operation of the aforesaid 99th Constitutional Amendment.
Therefore, the Chief Justice of India is constitutionally bound to uphold and honour the provisions of the Constitution, inter alia, including Article 124A of the Constitution which creates a committee, as mentioned above, to nominate two eminent persons to be members of the NJAC.
In view of the aforesaid, I am of the respectful and considered opinion that by refusing to join the said committee, which is a constitutional mandate as of today, the Chief Justice of India Shri H.L. Dattu has committed a constitutional impropriety and has violated the oath of office. To reiterate, he was not acting in a judicial capacity while refusing to join the said capacity.
This has led to a deadlock on the NJAC. A constitutional crisis has been created. Since the NJAC system has now come into force, the older Collegium system of appointing judges to Supreme Court and high courts is no more in existence. Therefore, if NJAC is made dysfunctional by the refusal of the Chief Justice of India to be a part of the committee to nominate two eminent persons to NJAC, thereby delaying the functioning of the NJAC, it may lead to undesired consequences.
Moreover, it is also a matter of serious concern as to whether the Chief Justice of India, who is the head of the Indian judiciary, can violate the provisions of the Constitution in such manner. The Chief Justice of India, who is supposed to uphold the Constitution, cannot disrespect and disobey its validly enacted provisions.
What can be the consequences for such constitutional impropriety? With great respect, I am of the considered opinion that the disrespect shown by the Chief Justice of India to a specific constitutional mandate may perhaps come within the meaning of the word “misbehaviour” in clause (4) of Article 124 of the Constitution which can lead to an impeachment process to remove a judge of the Supreme Court from his office. Though, of course, it is highly improbable, and perhaps undesirable also, that it would happen since the Government is not expected to take such a drastic measure for various reasons (including, but not limited to, lack of political capital) and also since some other alternative solution will perhaps be found, including staying of the operation of the aforesaid 99th Constitutional Amendment as an interim measure by the Constitution bench which is hearing writ petitions challenging the constitutional validity of the said amendment.
Nonetheless, by his aforesaid unfortunate and unprecedented decision, the Chief Justice of India has not done justice to the rule of law that exists in India. Such a decision was least expected from Shri H.L. Dattu, who is otherwise well known for his judicial acumen and wisdom, and is a highly respected judge. Perhaps, he should review his decision at the earliest possible opportunity.