Beware the tyranny of the elected

It has been a fortnight since the Supreme Court struck down the Constitution (99th Amendment) Act and also declared the National Judicial Appointments Commission Act, 2014, as unconstitutional and void. The fine print of the decision has been analysed to death. However, the unspoken 600-pound gorilla in the room is the power dynamic between the executive and the judiciary and how it evolved since the commencement of the Constitution.

From the dawn of the Constitution in 1950 till 1967, the Supreme Court adopted a rather conservative approach towards the interpretation of the Constitution. It had, by majority, held that parliamentary sovereignty was supreme and Parliament had unlimited powers to amend the Constitution.

In context of property rights, juxtaposed against the socialist narrative of the then government, the Supreme Court, for the first time in 1967, in Golak Nath’s case barred Parliament from taking away or abridging basic human rights by amending the Constitution. These entitlements are enshrined in the Constitution and ubiquitous in the chapter on fundamental rights.

Then came the landmark Kesvananda Bharati judgment in 1973. The Supreme Court propounded the basic structure doctrine, whittling down the power of Parliament to amend the Constitution by holding that there were certain basic features of the Constitution that even Parliament could not alter. Although there was nothing in the text of the Constitution limiting the power of amendment, the judges discerned some implied limitations, thereby designing the basic structure construct.

At that point in time, the basis of the judgment, or the lack of it thereof, came under dense denunciation from the Bar and the political executive. On the very next day, three senior judges of the Supreme Court, who had voted in favour of limiting the power of amendment, were superseded. The fourth senior-most judge, Justice A.N. Ray, was appointed as Chief Justice of India.

Whatever may have been the rationale, this was perceived as an insalubrious departure from the tradition established since 1950 of nominating the senior-most judge as the Chief Justice of India. The three judges resigned in protest. Lok Sabha member Mohan Kumaramangalam speciously validated the perception of bloodletting by hyperventilating in Parliament that the country needed judges who were committed to the political ideology of the government of the day.

The new Chief Justice reinforced this perception further by constituting a bench of 13 judges to reconsider the basic structure doctrine. Fortunately, the attempt had to be aborted due to the embarrassment caused during the hearings.

A struggle for supremacy between the executive and the judiciary became the order of the day. The sardonic pejorative “court packing” was freely bandied about. Since the executive exercised primacy in the process of appointment of judges, a canard gained credibility that only such persons would be considered for appointment as judges who were in tune with the ideology of the government.

This was then followed by the supersession of Justice H.R. Khanna. He had rightly held in the A.D.M. Jabalpur case towards the end of 1976 that the right to life enshrined in Article 21 of the Constitution could not be suspended even during the Emergency. He was not appointed as the Chief Justice of India.

Although in the First Judges case in 1981, the Supreme Court upheld the supremacy of the political executive in the appointment process, the judiciary was not only queasy but also extremely uneasy with this arrangement. This found reflection in the lead judgment of Justice P.N. Bhagwati in which kernels of the collegium system were seeded.

It took another 12 years for the seeds to flower into the present day collegium system that was institutionalised by the Supreme Court in the Second Judges case in 1993. The Supreme Court by a majority held that the term “consultation with the Chief Justice of India” in the constitutional scheme for appointment of judges to the Supreme Court and the high courts must be read as concurrence. This changed the balance of power. What till yesterday was an executive privilege became a judicial prerogative. The equation of primacy was now in favour of the judiciary. The judiciary, in a 1998 presidential reference, or the Third Judge’s case, unequivocally reinforced this primacy.

The key reason, therefore, for the Supreme Court to appropriate to itself the power of appointments to ostensibly preserve the independence of the judiciary was the rancorous legacy of the earlier decades as much as the merits of a matter that it was considering at that point in time.

Turning to the present, the events leading up to the passage of the 99th Constitutional Amendment and the NJAC Act did not exactly create the right ambience. In fact, the malevolent conduct of the government muddied the waters. Right after the National Democratic Alliance government was sworn in, it took umbrage to the proposed elevation of the former solicitor-general of India Gopal Subramaniam to the Supreme Court on completely frivolous grounds.

Mr Subramaniam, in a display of statespersonship, withdrew his candidature rather than allow the government to belittle the process through an inspired campaign of calumny and insinuation.

Even though the proposal to have a Judicial Appointments Commission was made by the previous UPA government, much like the Judicial Accountability Bill the government did not attempt to push it through. It allowed it to linger deliberately so that the process could find its own equilibrium. When it did not, it was allowed to lapse. On the contrary, the haste with which the present government carried it through was astounding. In a Parliament of more than 750 members, the debate centered primarily on the demerits of the collegium system. With only one member voting against the amendment, the bill sailed through smoothly. The rare political consensus also ensured that one half of the states ratified it.

When the hearing of the challenge to the amendments began, the Constitution Amendment Act and the NJAC Act were not yet notified by the government. Only two days prior to the final hearing did the government think it appropriate to notify the acts, thereby sending a clear signal that it had started having second thoughts about its “Don Quixote” initiative.

The lead judgment by Justice Jagdish Singh Khehar expresses apprehension about the ability of the political executive to be a participant in the appointments process of judges to the constitutional court for a myriad and one reasons.

However, the primary reason for the rejection of the NJAC was delineated as the perceived threat to the integrity of the appointment process from the political executive and threat to the primacy of the judiciary in the entire paradigm.

The lone dissenting voice based his judgment on the lack of transparency in the appointment process under the collegium. In a display of both fairness and candour, even the judges who ruled against the constitutional amendment have underscored the flaws in the collegium arrangement and have posted the matter for a “consequence hearing” in November.

Perhaps, one of the esoteric triggers for the almost unanimous striking down of the constitutional amendment and the NJAC could be the return of a majority government after almost a quarter century of coalition governments. Maybe that is why the court, even for deciding a constitutional question, has rightly found the attendant political circumstances relevant. They find prominent mention in the body of the judgment. One can only wonder whether the Supreme Court may have come to a different conclusion if a coalition government had been in office.

Only four times before has a constitutional amendment been struck down by the Supreme Court, and three of those four occasions have been because it barred the fundamental power of judicial review. This time around, and notably so, the principle of separation of powers and independence of the judiciary have been invoked to strike down the 99th Constitutional Amendment.

The argument made by the government in the Supreme Court, and outside, that the NJAC represents the “will of the people” and, therefore, must be held as valid by the courts, is legally subversive and morally insidious. If accepted, parliamentary majorities can then resort to unconstitutional actions, like abrogation of the Constitution, replacing democracy with dictatorship, and tell the courts that they cannot hear a challenge to these actions, much less strike them down as it reflects the will of the people as expressed by the legislature. This would ring the death knell of the court system. The most hilarious of course was the “tyranny of the unelected” hyperbole coming as it did from a gentleman whose electoral credentials are nothing much to write home about.

With the spectre of fascism hanging low, a great evil stalks our land. It is better, for now, that judges continue to appoint judges, howsoever imperfect the system may be, rather than leaving it to the tender mercies of Narendra Modi and his not very merry men. It is undoubtedly the lesser of the two evils. For judges will retire, governments will change, but the Constitution would remain to be revisited at a more fortuitous time. As war is too serious a business to be left to generals, judicial appointments are too critical to be allowed any monkeying around with.

The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari