I. Introduction

Imagine this: Justice H.R. Khanna was denied appointment to the Supreme Court in 1971. Why? Because, in the absence of a collegium, concerns arise that the executive’s involvement in his selection might create a sense of reciprocity, potentially compromising his independence. Such speculative reasoning, based on hypothetical risks would have cost the judiciary one of its most iconic defenders of civil liberties. Something similar had been done by the Supreme Court (SC) in the Fourth Judges’ Case. Here, the SC struck down the 99^th Amendment and the National Judicial Appointments Commission (NJAC) Act with a 4:1 majority. One of the bases for majority’s decision was a speculative concern: the presence of non-judicial members, particularly the Law Minister, could compromise judicial independence.

In this essay, I argue that basing an important judgment on speculative reasoning is inherently flawed. Rather than safeguarding judicial independence, this approach elevates hypothetical risks over evidence. To support this argument, I will show how speculative fears can undermine the intended purpose of a judgment while also demonstrating that the existing collegium system is susceptible to influence—a reality that the speculative reasoning in the NJAC judgment fails to address.

II. Background of Judicial Appointments

Articles 124(2) and 217 of the Constitution provide the framework for judicial appointments to the SC and High Courts respectively. According to these provisions, the judges shall be appointed by the President (acting on the executive’s advice) after “consultation” with the Chief Justice of India (CJI) and if deemed necessary, with other judges. From 1947 to 1970, the political executive duly respected all the recommendations of the CJI, and the appointments were a collaborative exercise. However, 1971 onwards, a different trend was observed. Here, the executive started recommending its own nominees, to which some CJIs agreed and some not. This tension prompted the 80^th Law Commission to suggest for a collegium model to mediate the differences between the judiciary and the executive. Over time, the SC also gave judgments, significantly impacting the judicial appointment procedures in the higher judiciary.

Amongst these, the four Judges’ Cases have been the most influential. In the First Judges’ Case (1982), the SC held that “consultation” in Article 124(2) only implies exchange of views and not concurrence. Later, this interpretation was partially overruled in the Second Judges’ Case (1993), where “consultation” was interpreted as concurrence and the CJI’s advice was made binding on the President. This judgment also approved the collegium model recommended by the Law Commission, requiring the CJI to consult with the two senior-most judges before making recommendations. Thereafter, due to some points left uncleared, the SC came up with the Third Judges’ Case, reaffirming the 1993 judgment and enlarging the SC panel from 2 to 4 senior-most judges—a structure now recognized as the ‘collegium system’. However, the “principled and practical deficiencies…of the collegium led to several reforms…[which finally] materialized into the 99^th Amendment and the NJAC Act.”

In 2015, with NJAC, the legislature “sought to substitute the judicially evolved collegium…with a more broad-based appointments system.” The Commission was to consist of six members: three SC judges (CJI as Chairperson), the Law Minister, and two ‘eminent persons’. Under the NJAC Act, any two members of the Commission could veto a candidate’s appointment, effectively requiring a “super-majority” of five out of six for any appointment to proceed. However, these reforms were later struck down by SC in the Fourth Judges’ Case.

III. The Fourth Judges’ Case and Its Flaws

In 2015, the majority of the Fourth Judges’ Case bench held 99^th amendment and NJAC Act ultra vires to the Constitution “on the [major] ground that inclusion of the Law Minister, as an ex officio member…impinged upon the independence of the judiciary as well as separation of powers, and hence, was violative of the basic structure of the Constitution.” This judgment has been criticised on various grounds: judges’ self-serving bias, wrong interpretations of the basic structure doctrine, disregard for the collegium’s shortcomings, etc. However, a critique that is scarcely addressed is the court’s reliance on speculative reasoning. My analysis focuses on this overlooked aspect, arguing that this reasoning is fundamentally flawed and does not effectively address judicial independence.

For the majority, the principal concern with the NJAC was the involvement of non-judicial members, particularly the Law Minister. The reasoning given by them was majorly speculative and followed a consistent ‘what if’ logic. Justice Lokur, for instance, in paragraph 916, says that “being a Cabinet Minister…Law Minister is undoubtedly a very important and politically powerful figure whose views can, potentially, have a major impact on the views that other members of the NJAC…” (emphasis mine). If we focus on this reasoning, the word “potentially” signals its speculative basis, suggesting an assumed but unproven bias from the Law Minister. As rightly summarized by Alok Prasanna, the majority is portraying the Law Minister as a “somewhat sinister figure” with a “mysterious ability to influence and dominate,” where even the potential for his views to sway others is “anathema” to judicial independence.

The are two problems with this line of reasoning. First, as discussed by Mukul Rohatgi, the court is going too far in presuming that the mere presence of a political executive, who is, notably, in a numeral minority (one out of six), has the potential to “cloud” the opinion of other members, which “ironically” include the CJI and the two senior-most judges. Second, and yet to be highlighted by anyone, is the inherent inconsistency and flaw in the majority’s reasoning, making it the victim of ‘argument from speculation’ or, more formally, a ‘hypothetical fallacy’. The result is that it can lead to circular, unverifiable arguments, as each hypothetical scenario can be countered with another equally speculative scenario. The majority appears to believe that making such speculation and keeping the executive out of its direct interference would save the independence of judges. However, this reasoning overlooks that executive influence may still arise in appointments done exclusively by the collegium.

To understand this better, we must know the current procedure of judicial appointments. As held in the Fourth Judges’ Case, there is primacy of judiciary and limited role of the executive in judicial appointments. The collegium (five senior-most judges of the SC) initiates the selection and “has the final or ultimate voice, in [proposing] the appointments…”. After the initial selection, the executive can provide its comments, which however the collegium is not bound to accept. Once the collegium gives the final list of the selected judges, the President (acting on the executive’s advice) formally confirms the appointments. However, notably, there is no prescribed time limit within which the executive has to process these recommendations and effectuate the appointments.

Now, if we attack the majority’s reasoning by assuming another hypothetical situation, then it falls flat. Let’s imagine, that the collegium has recommended five judges for the SC, some of whom have a history of ruling against the central government, making them less favourable to the executive. Since, the judges’ seniority depends on their date of appointment to the SC, executive has two ways to potentially influence the judicial independence. First, it could expedite the appointments of favourable judges while stalling on the others, perhaps with an under-table agreement that the promptly appointed judges reciprocate with favourable rulings. Alternatively, the executive may go further by planning for a favourable judge to become a future CJI. Through a mutual understanding, the executive could control the seniority rankings by accelerating or delaying appointments, eventually shaping a collegium headed by a CJI, and possibly other senior judges, who feel an obligation to recommend candidates that suit the executive’s interests, thereby compromising judicial independence from within.

This exposes the flaw in the majority’s reasoning: excluding the Law Minister on speculative grounds of potential interference does not effectively safeguard judicial independence, as potential avenues for executive influence persist even within the collegium system. In fact, this concern is not mere theoretical; evidence shows that the executive often delays action on collegium recommendations for months or even years, effectively reducing the collegium’s role to that of a “search committee”.

Two potential counter-arguments could challenge my claim. First, that the majority’s speculation was specifically about direct executive involvement, not indirect avenues of influence. Second, that my scenario, where the executive strategically plans for a future CJI and, by extension, a favourable collegium is overly speculative and practically implausible.

The first counter-argument, while logical, has been adequately addressed by various critiques. The distinction between direct and indirect involvement is largely superficial. As Mukul Rohatgi points out, the Law Minister’s single vote within the six-member NJAC neither grants him decisive power over appointments nor the ability to sway decisions independently. His role, in both capacities, as a NJAC member or external advisor, is effectively concerned with providing recommendations on the basis of candidates’ backgrounds. Therefore, the hypothetical risks posed by his “direct involvement” are effectively no greater than those posed by his indirect advisory role, which the Court found acceptable.

The second counter-argument suggests that such long-term planning by the executive is implausible, as it is uncertain whether the ruling government would still be in power by the time their preferred judges gain seniority to join the collegium. While this may seem reasonable, it misunderstands the nature of judicial tenure. SC judges retire at 65, with an average tenure of around 5.3 years. Through strategic appointments, especially of younger judges, the executive could position these judges to reach the collegium, or even the CJI role, within a realistic timeframe of 3-4 years. Thus, this scenario is not as far-fetched as it seems and, instead, reflects a plausible means for the executive to influence judicial leadership even within limited terms.

IV. Conclusion

In this essay, I have shown that the reasoning in Fourth Judges’ Case is fundamentally flawed due to its hypothetical fallacy. Making a ruling based on speculation is not a sound practice; significant judgments, especially those striking down a constitutional amendment, must be based on law and facts, as reflected in Justice Chelameswar’s dissent, rather than hypothetical fears. The NJAC, being a legal collaborative exercise, deserved careful consideration rather than outright dismissal based on unproven concerns.

Mohit Kumar Manderna & Kritika Vatsa are BBA LL.B. (Hons.) students at Jindal Global Law School, O.P. Jindal Global University. Interests include International Relations, Sociology, Economics and History.