#TheHindu #Editorial The question of primacy

To a layperson, the question raised by a judge of the Supreme Court last week on the exact constitutional identity of the country’s Chief Justice may appear to be only an academic doubt. However, seen in the backdrop of the current debate over what is the ideal process for appointing members of the higher judiciary, the question may have a bearing on the role of the Chief Justice in the process. The question from Justice Kurian Joseph, in the course of the hearing in the case relating to the validity of the National Judicial Appointments Commission, arose from the fact that Article 124 of the Constitution refers to ‘the Chief Justice of India’, while the ‘Form of Oaths and Affirmations’ in the Third Schedule uses the term ‘Chief Justice of the Supreme Court of India’. Is there a distinction? The provisions concerning Supreme Court judges fall under the head ‘Union judiciary’ in the Constitution, implying that the CJ is indeed the head of the Supreme Court. In judicial matters, the CJ is the first among judges enjoying equal status, but in a constitutional sense, especially when playing the role of a ‘consultee’ in judicial appointments, he is the paterfamilias of the entire judiciary. This dual identity presents no conundrum when one remembers that the judiciary, unlike the executive or the legislature, is not federal in nature. While the State and Central governments, or the State legislatures and Parliament, which are sovereign in their respective domains, have an element of co-equality, the judiciary has a single hierarchy in which the Supreme Court is at the apex. This is demonstrated by the fact that under Article 141, the law declared by the Supreme Court is binding on all the courts.

However, the question acquires an entirely different dimension when seen in the context of the current debate on whether the country needs a new mechanism for judicial appointments — the NJAC — or it should retain the collegium system introduced by the ‘second judges’ case’ in 1993. The collegium, originally a three-member body conceived by the court, and later expanded to include five members by the ‘third judges’ case’ of 1998, was an institution in which the CJ’s consultative role was encapsulated. If the NJAC, in which the Chief Justice and two senior-most judges represent the judiciary, while two ‘eminent persons’ and the Union Law Minister represent the executive, is going to replace the collegium, does the CJ lose his constitutional identity as a necessary ‘consultee’, and his role diminished to that of an ordinary member in a multi-member commission? In other words, the question seems to be the one that the NJAC debate began with: should the judiciary retain its primacy in appointments, or should it share an equal responsibility with the executive?

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