New Delhi, April 14: A five-judge Constitution bench is scheduled to take up tomorrow the validity of the just-notified commission that will pick judges but an opinion has surfaced among some lawyers that a bench of at least nine judges might be needed to settle the issue.
The number of judges has become a subject of debate because of something that happened 22 years ago.
In 1993, a Constitution bench of nine judges had concluded that the judiciary had primacy when it came to appointment of judges. In 1998, a subsequent ruling by a bench of seven judges upheld the primacy of the judiciary. It evolved a collegium system, under which a panel of five Supreme Court judges, headed by the Chief Justice of India, decided the names of judges.
Lawyers do not foresee a problem if the current five-judge bench upholds the primacy of the judiciary - although its impact on the National Judicial Appointments Commission (NJAC) will be devastating. However, in case the bench rules in favour of the new law, it will bring into play the question whether five judges can overrule what nine judges had ruled and seven others had upheld.
Notified by the Centre yesterday, the NJAC strikes a balance between the judiciary on the one hand and the government and the civil society on the other.
Under the NJAC, a panel of six members (three judges, the Union law minister and two eminent persons) will recommend the names. If two members oppose a name, it cannot be pushed through.
However, the two eminent persons will be chosen by a panel of the Chief Justice of India, the Prime Minister and the leader of Opposition - where the political system has a numerical edge over the judiciary. This has prompted some sceptics to point out that the NJAC leaves the judiciary's recommendations vulnerable since they can be blocked if the minister manages to win over one of the eminent persons who had been picked by a panel where the political system had the upper hand.
The petitions challenging the new process was originally taken up by a three-judge bench, which subsequently forwarded the case to the current five-judge bench.
"Yes, I think the matter needs to be examined by a larger bench. But let us see, we will be seeking a stay on the notification. We are going to argue that a nine-judge bench ruling cannot be overturned by Parliament," senior counsel Anil Divan said.
Divan, who is appearing for one of the petitioners in the case, was referring to the 1993 ruling.
Veteran lawyers told The Telegraph that since the issue involved complex constitutional law, the matter might eventually reach a larger bench of nine, 11, 13 or even 15 judges.
Former additional solicitor-general Bishwajit Bhattacharya agreed with Divan. "In my view, a five-judge bench cannot overrule a nine-judge bench ruling. Only a larger bench of 11 judges or even a 15-judge bench can upturn a decision of a nine-judge bench. Besides, the majority judgment (of the 13-judge bench) of the Kesavananda Bharati case till today remains the law of the land," Bhattacharya said.
In 1973, through a landmark but sharply divided (7-6) verdict in the Bharati case, the apex court had held that the basic structure of the Constitution could not be tampered with through an amendment.
Divan is appearing for the Indian Bar Association, one of the petitioners who have challenged the validity of the NJAC as being violative of the basic structure of the Constitution.
"If the government argues that the basic structure doctrine needs a fresh look, then the matter has to be referred to a minimum 15-judge bench," Bhattacharya said.
But a former Patna High Court judge, Justice Ajit Sinha, said: "The NJAC has been enacted by Parliament, ratified by the states and the President has given his assent. It is also notified now.... So even a five-judge bench can determine the validity of the law. The question of referring the issue to a larger bench may not be necessary," Sinha said.
Advocate Jitendra Kumar Mohapatra said the first thing the five-judge bench should do is issue notice to the government on the petitions and stay the notification.
What happens if the five-judge bench does not agree with the 1993 ruling of the nine-judge bench? It cannot overrule that judgment because, according to convention and judicial propriety, a smaller bench can never overrule the decision of a larger bench.
In that case, Mohapatra said, the only option is to refer the matter to another bench of at least nine judges or a larger bench.