Executive vs judiciary: Stop political jousting

Union law minister Ravi Shankar Prasad played it wrong when he asked the Supreme Court why it could not trust the Prime Minister and himself with the appointment of judges to the high courts and Supreme Court. He was speaking at the National Law Day celebrations in New Delhi on Sunday. (The National Law Day, or Constitution Day, was created by the Narendra Modi government in its bid to appropriate the image of Dr Bhimrao Ambedkar, who was chairman of the drafting committee of the Constituent Assembly, and is deemed the architect of the Constitution.) Mr Prasad was quite justified in indulging in political jousting in the wake of the Supreme Court holding the National Judicial Appointments Commission (NJAC) Act as unconstitutional in its 2015 judgment.

Chief Justice Dipak Misra hit back by saying there is need for all branches of the State — legislature, executive and judiciary — to function within their respective spheres and that constitutional sovereignty is supreme. The Chief Justice had literally ticked off the law minister. Prime Minister Narendra Modi was cautious in the inaugural speech on the occasion when he talked of the balance between the legislature, executive and judiciary.

The Supreme Court ruling on the NJAC has been a big blow to the Modi government. The government’s case was badly argued by then attorney-general Mukul Rohatgi, though the Constitution is very clear that judges are appointed by the President. As the President in our constitutional system doesn’t act on his own but on the advice of the council of ministers headed by the Prime Minister, it always meant that the government of the day was involved in the appointment of judges.

The irony lies in the fact that it was the BJP and other Opposition parties which had clamoured for the change in the mode of appointment to the higher judiciary. And they argued the case for the Chief Justice of India and his senior colleagues to appoint the judges. The collegium system is a result of the insistence of the Opposition parties, including the BJP. It was soon recognised by all parties that the collegium system has created problems of its own, and that it had become opaque and even suspect about its ability to choose the right people to be judges. Even the Supreme Court had recognised and acknowledged that there is a need for transparency and accountability in the running of the collegium.

The law minister should have avoided reference to the NJAC issue because it is quite evident that the Supreme Court ruling in the NJAC case goes against the spirit of the Constitution. The judges can’t be a law unto themselves and they can’t be left to make appointments to the high courts and the Supreme Court. The Modi government needs to have constitutional clarity and political courage to pass the NJAC bill again and include an amendment saying the Supreme Court can’t invalidate it. This may not be legally outrageous because the jurisprudential principle should be that the Supreme Court can’t be a judge in a matter which concerns itself.

Mr Prasad has also wrongly framed the issue. It’s not a question of trusting the Prime Minister and law minister, who, according to him, are popularly elected. That is an unconstitutional position. The PM and the law minister, per se, shouldn’t have any powers to appoint judges. As a matter of fact, the NJAC, does not provide for the discretion of the Prime Minister and law minister. Their presence in the NJAC could be decisive, but it has to be seen to be fair and according to the rules laid down for the functioning of the NJAC.

The law minister wanted to turn his leader, Mr Modi, into a knight-in-shining-armour who sets out to do good, and therefore, by implication, the judiciary should surrender its wisdom to him. Constitutional democracies like that of India don’t depend on the good intentions of aspiring supreme leaders like Prime Minister Modi. All functionaries of the State, including the President and the Chief Justice of India, are bound by rules and norms. Mr Prasad’s Modi gambit was both bad politics and bad constitutional theory.

Chief Justice Misra has certainly fended off Mr Prasad’s political assault by invoking the principle of constitutional sovereignty, but the higher judiciary isn’t really standing on firm ground over the appointment of judges. The court can’t appoint itself. It is done through the Constitution, which was legislated by a democratically elected body. The legislature has the right to make necessary amendments to the Constitution on how judges are to be appointed.

It is often forgotten that in the famous Kesavananda Bharati case of 1973, where the Supreme Court had through a very narrow 7-6 margin propounded the “basic structure of the Constitution” theory, under which any law that is seen to be violating the intent and spirit of the Constitution is held to be null and void. But the theory does not amount to judicial infallibility, and it needs to be questioned and tested time and again as to what constitutes the “basic structure”. The appointment of judges as envisaged in the Constitution does not fall into the “basic structure” penumbra.

The BJP is in a double bind on the issue of the judiciary. It has been most vocal while in Opposition that there should be no political interference in the appointment of judges, that is a politically naïve position at the best of times. It can’t now argue that the executive should be given the right to appoint judges. As the party in power, it is not too happy with a fiercely independent judiciary. What the BJP has to recognise is the fact that while the executive can appoint judges, it can’t dictate terms to the judiciary on how the Constitution should be interpreted. Invoking Prime Minister Narendra Modi’s popularity is not the way to settle the issue.