Constitution’s will upheld

Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that appointments are fair and transparent.

Two days after the Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution, the Finance Minister, Arun Jaitley, said in his blog, “Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger.”

Law Minister Sadanand Gowda, immediately after the pronouncement of the judgment by the Constitution Bench, said that he was surprised by the verdict. He went on to say, “the NJAC was completely supported by Rajya Sabha and Lok Sabha; It had 100 per cent support of the people.” Telecommunications Minister Ravi Shankar Prasad — earlier the Law Minister who vigorously worked for the NJAC Bill — remarked that parliamentary sovereignty has received a setback. Attorney-General Mukul Rohatgi echoed similar sentiments when he said, “It is a flawed judgment ignoring the unanimous will of the Parliament, half the State Legislatures and the will of the people for transparency in judicial appointments.”

Questions on judicial review

The reaction of the executive to the NJAC verdict raises the fundamental question: Should the exercise of power of judicial review depend upon the will of the Parliament?

Indian Constitution, unlike the Constitutions of United States of America and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear. While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary.

Once the legislature has done a ‘legislative’ act, the constitutionality of such an act can only be decided through the process of judicial review and there can be no rule of law without such a provision. In other words, the power to strike down offending amendments to the Constitution on the touchstone of basic structure can be exercised by the superior judiciary alone, uninfluenced by the will of the Parliament. The rule of law would cease to have any meaning if the discharge of judicial functions is seen as thwarting the will of the people represented by the elected legislatures. Any attempt to reconcile judicial review with the will of representatives of people is sure recipe for destruction of the rule of law.

Our Constitution has given the power of judicial review to the unelected superior judiciary to declare ‘unconstitutional’ a legislative act, once it is found to be violative of the basic structure. It would be a sad day for our democracy if the exercise of judicial function is made dependent on the will of the representatives of people. What remains of democracy if there is no rule of law? The institutional arrangement at the heart of our democracy provides that the will of the people, as reflected in the decisions their elected representatives, is subject to the will of the Constitution, as reflected in the decisions of an independent judiciary.

In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.” This means that demands of the Constitution can override the wishes of the people expressed through elected governments. These are at the very core of a democratic commitment to judicial independence and constitutional supremacy.

Parliamentary supremacy refers to the power of Parliament to make laws within the limits imposed by the Constitution. It also denotes the supremacy of Parliament over the executive, primarily through the accountability of the Council of Ministers to Parliament. Judicial review of the constitutional validity of laws is also an integral part of a parliamentary democracy.

All the three organs of the state derive the power and jurisdiction from our Constitution. Each must operate within the sphere allotted to it. Judicial function is also a very important sovereign function of the state and provides the foundation for rule of law. When a verdict such as that striking down the NJAC comes, the ebb and flow, the critical scrutiny and the inherent relational tensions are not surprising. They must be handled deftly and with maturity.

Judicial independence is a central goal of most legal systems, and the mode of appointment of judges is seen as a crucial mechanism to achieve this goal. While in all democracies of the world, there is near-universal consensus on the importance of judicial independence, legal systems utilise a wide range of selection mechanisms — the split model, the collaborative model, the parliamentary model, the judicial self selection model and the judicial appointments commission model — in practice. Often, they reflect different conceptions of independence of judiciary.

The diversity of constitutional ethos in different countries suggests that it may not be a good idea to borrow other systems for the selection of judges. It is not wholly correct to say that judges appoint judges in India as consultative participation of the executive is present in the institutionalised procedure prescribed after the Third Judges case, but assuming it to be so, ours is perhaps the only country where the government is the biggest litigant before the courts.

We are one of the very few countries where actions of the political executive in diverse fields — ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications — are brought before the superior judiciary in the public interest litigation. Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters? It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.

Veto to non-judicial members

In the Second Judges case, the nine-judge Bench exposited that appointment of judges to High Courts and the Supreme Court forms an integral part of the basic structure of our Constitution, and therefore, the executive cannot interfere with the primacy of judiciary in the matter of appointments. The NJAC’s flawed composition consisted of the fact that it merged certain components, reflected in the inclusion of Law Minister and two eminent persons and giving any two members the power to veto the decision of the other four. This directly affected the independence of judiciary in the judicial appointments process. Had the Parliament maintained the primacy of the judiciary while providing for the entire scheme of working of the NJAC, the decision may have been different.

It is true that while legislatures respond to the urgings of the people, the judges serve only for justice — for them justice is the only mandate. I see the NJAC verdict as a demonstration of constitutional compliance and not of the judiciary flexing its muscles to knock out the people’s will. For me, democracy is enhanced when judiciary effectively fulfils its constitutional mandate. Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.

While I admire the well crafted article “Usurping Parliament’s Power,” written by Abhishek Manu Singhvi , I find myself unable to agree with his reasoning. However, I agree with him that judicial appointments need fresh air and an innovative and objective set of inputs. That is what I felt as the Chief Justice of India. I wanted to institutionalise the best practices that would bring fairness and transparency in the appointment of judges to the superior judiciary. I had a long meeting with Chris Stephens and Lord Toulson, Chairperson and Vice Chairperson respectively, of Judicial Appointments Commission, England and Wales to understand their working in the judicial appointments.

The judges who delivered the judgment in the NJAC case also hold the view that an improvement in the working of the collegium system is the need of the hour. They have proposed a hearing on this aspect on November 3.

Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary in the matter of the appointment and transfer of judges of the superior judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that all appointments by the collegium meet the tests of fairness and transparency and all selections are made solely on merit with an encouragement provided to the diversity in the persons available for selection. Appoint good judges; the rest will follow.