Union Finance Minister Arun Jaitley has, in his “personal capacity” , condemned the Supreme Court’s judgment striking down the constitutional amendment that facilitated the NJAC Act, pointing out that in order to uphold one basic feature of the Constitution, the judgment has sought to weaken five others: an elected Parliament, an elected government, an (elected) council of ministers, an elected prime minister, and an elected leader of the Opposition. He concluded that democracy cannot be a “tyranny of the unelected”.
With respect, I have to disagree. If the sole purpose of democracy was to create a government backed by a majority, we would not have needed 395 articles and about 100 amendments to tell us how to do so.
We could even have followed the British example of an unwritten constitution. A formally enacted constitution is needed to spell out the relationship between the three arms of government, legislature, executive and judiciary, and its overriding purpose is to ensure the rule of law.
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In every constitution, the responsibility for safeguarding the rule of law rests with the judiciary. But there is hardly a democracy anywhere, in which this has not been challenged by the executive. The US constitution had deemed it sufficient to subject the president’s nominations to the Supreme Court to endorsement by the Senate, because the founding fathers did not foresee the possibility of the two joining hands to pack the judiciary with partisan judges.
Under Article 124, the Indian Constitution gave a similar discretionary power to the president, requiring him to use it only “after consultation with such of the judges of the SC and of the high courts in the states as the president may deem necessary”. But since the president is bound by the advice of the council of ministers, this made a challenge from the executive to the independence of the judiciary inevitable.
It came in 1967, when Shamsher Singh, a junior judge in Punjab, challenged his dismissal by the government on the grounds that this was a discretionary power that rested personally with the governor, not the government. In 1974, a seven-judge bench of the SC dismissed his petition, arguing that since Article 74 of the Constitution obliged the governor to act upon the advice of his ministers, a termination order by the government had to be deemed to have come from the governor. This judgment opened the way for Indira Gandhi to supercede three seniormost judges of the SC during the Emergency. Ever since then, the SC has been engaged in a never-ending battle to repair the damage.
This was partly repaired by its Kesavananda Bharati judgment, in which it limited Parliament’s Constitution-amending powers to those that did not change the basic structure. The question was still open on whether, for the president, consultation with the chief justice and other judges was discretionary or mandatory. It is out of the attempt to frame rules for this consultation — in two other conflicting judgments and a reference to the SC, collectively known as the “three judges” cases — that the SC evolved the collegium system.
The system has ensured the independence of the judiciary by establishing an extensive system of consultation with the government but keeping the final power of appointment in the hands of the CJI and a collegium consisting of senior judges.
It is this primacy of the judiciary that the NJAC act would have destroyed in not one but three ways: First, by bringing the law minister, that is, the executive, directly into the selection process; second, by giving him the power to veto any judge selected by the CJI and his colleagues with the help of only one of the two eminent lay members of the NJAC; and third, by asking the seniormost judge after the chief justice, who would normally succeed him, to recuse himself from the selection panel, so that in this most critical appointment, the judiciary would be reduced to a minority.
No system is perfect, and as a system of choosing judges, the collegium system is no exception. But it needs to be judged not against yardsticks we may like it to meet but its success in maintaining the independence of the judiciary. By this yardstick, the collegium system has been an unqualified success.
Jha is a senior journalist and author