India’s judiciary is in the throes of a crisis. For several years, the executive has accused it of overreach, and it now faces unprecedented divisions at its own high table. Earlier this year, four senior judges went to the people against the allocation of cases by the Chief Justice of India, who underlined his authority as Master of Rolls. Subsequently, a motion of impeachment was moved against the CJI. In the course of conversations with The Indian Express’s Seema Chishti and Sushant Singh, eminent jurist Prof Faizan Mustafa explained this extraordinary situation to this paper’s readers in New Delhi and Mumbai.
On the importance of an independent judiciary in India
We are a constitutional democracy, not a monarchy. In a federal constitution, where power is distributed between the Centre and states, and between various organs of the state, disputes are bound to arise between constitutional authorities. The primary job of any federal superior court would be to resolve these disputes. Also, in a constitutional liberal democracy, the people have rights. We were born with these rights; they are not a concession given by the state, and that is why the state cannot take them away. The greatest threat to the rights of the people comes from the state, because it has the monopoly over power. And because the legislature makes laws and the executive implements them, you don’t have much choice but to give the task of protecting these rights to the judiciary. If the judiciary is not independent, the rights of the people will be in great danger. The independence of the judiciary is the first condition of a successful constitutional democracy. Independence of judges is not the right of judges, but rather, the right of citizens.
Most democratic governments do not want an independent judiciary; rather, they want to control the judiciary. On September 10, 1949, Pandit Jawaharlal Nehru told the Constituent Assembly: “…No judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of Parliament.”
Now, our thesis is that Parliament acts under the Constitution, our Supreme Court is not supreme, it is the Constitution that is supreme, and that the Supreme Court works under the Constitution. (But) the assertion by our tallest leader, and democrat, is that the Constitution itself is a creation of Parliament. This is how we started on our constitutional journey.
In Kesavananda Bharati (Kesavananda Bharati Sripadagalvaru and Ors vs State Of Kerala And Anr, April 24, 1973, which laid down the doctrine of ‘basic structure’ that empowers the judiciary to review and strike down amendments that are in conflict with the basic structure of the Constitution), Justices (K S) Hegde and (B K) Mukherjea underlined the importance of an independent judiciary as a bulwark against majoritarianism: “Two-thirds of the members of the two Houses of Parliament (needed to amend the Constitution) need not necessarily represent even the majority of the people of this country. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of either House of Parliament… That apart, our Constitution was framed on the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. …Representatives of the minorities in the Constituent Assembly gave up their claim for special protection which they were demanding in the past because of the guarantee of Fundamental Rights. Therefore the contention on behalf of the Union and the States that the two-thirds of the members in the two Houses of Parliament are always authorised to speak on behalf of the entire people of this country is unacceptable.”
On early interactions between the courts and the government
During the first 17 years of our republic, by and large, the Supreme Court reposed faith in Parliament. Most MPs were freedom fighters, and the court trusted them. But as amendment after amendment was used to undo the core values of the Constitution, the court had to apply the brakes in 1967. That was Golaknath. (I C Golaknath & Ors vs State Of Punjab & Anr, February 27, 1967) Because of its experience since 1950, the court refused to trust elected representatives with the amendment process, and ruled that fundamental rights could not be curtailed except by the Constituent Assembly. This created a deadlock, and the Congress manifesto for the next election specifically promised to reassert the supremacy of Parliament in amending fundamental rights. In Sankari Prasad (Sankari Prasad Singh Deo vs Union of India, 1951) and Sajjan Singh (Sajjan Singh vs State Of Rajasthan, 1964), the court had said Parliament had absolute power to amend the Constitution; in Golaknath, they swung to the other extreme. Which was not right, because Constitutions are to be dynamic documents, no one generation can have the monopoly over the wisdom to change them. In 1973, after Indira Gandhi’s complaints that the judiciary was coming in her way, the judges realised that the mood in the country was against them, and recalibrated their view — ruling in Kesavananda Bharati that while they would not interfere in amendments, the basic structure of the Constitution could not be violated. And very intelligently, they left ‘basic structure’ undefined.
On the “committed judiciary” of the 70s and 80s, and its echoes afterward
The government said it wanted judges who were committed to the Constitution. Some judges were crossing the line, maybe in pursuit of the larger goal of protecting constitutional values, but basically, the government was looking at judges who would uphold its policies. As a result, we got Justice A N Ray, about whom (former Chief Justice of India) Justice (M) Hidayatullah said that he (Ray) was “not a forward-looking judge, but a judge who was looking forward to the office of Chief Justice”. I believe the idea of a ‘committed’ judiciary, which is a hallmark of the socialist system, is not good for any liberal democracy, because it hurts the people’s faith in the judiciary and creates a crisis of legitimacy for the institution. This happened during the Emergency with, most prominently, ADM Jabalpur (ADM Jabalpur vs S S Shukla, April 28, 1976, the so-called ‘Habeas Corpus Case’, in which the Supreme Court shut its doors to appeals against the suspension of the right to life and liberty during the Emergency). Post-Emergency, the court tried to take the populist road, including the entertaining of public interest litigation (PILs). A number of judgments in the years after the Emergency spoke about the “People of India”, as the courts walked the extra mile to read new rights that were not already there in the Constitution. Instead of asking “What’s your problem?”, judges started to ask, “Who is in problem?”, diluting the concept of locus standi. Professor Upendra Baxi has adapted the title of Ronald Dworkin’s Taking Rights Seriously to submit that the Supreme Court now started to take the sufferings of the people seriously.
And yet, judicial activism should at all times guard against judicial adventurism. Judges should not take policy decisions, and dictate legislative or executive action. That Lakshman rekha should not be crossed.
On the January 12 press conference of senior judges, and its aftermath
It should not have happened, they (four seniormost judges of the Supreme Court after the Chief Justice) should have tried to sort it out, and if you saw their faces, they were visibly disturbed. They merely released a letter they had written to the Chief Justice of India, and what they were saying was that if they hadn’t gone to the people, future generations would curse them for not having risen to the occasion. I think it is a sad day when judges come to the people for justice, but the issue they flagged is pertinent as well. A constitutional democracy must have not just a constitution, but also constitutionalism. Hitler had a constitution, but no constitutionalism; many Muslim countries have constitutions, but no constitutionalism. Constitutionalism demands that no functionary of the state has absolute power; as Chief Justice K M Joseph of Uttarakhand High Court said (on April 21, 2016 while restoring the dismissed government of Harish Rawat), there can be no absolutism, and the President cannot act like a king. In the context of the January press conference, I think it is a legitimate question whether the Chief Justice of India has absolute power to constitute Benches as the Master of Rolls. It is a difficult problem to resolve, and they need to find some meeting ground. There is a fear that if Chief Justices of High Courts are to consult brother judges, it would create chaos. In a welcome move, CJI Dipak Misra has now made a subjectwise roster. Thus, something positive has, in fact, come out of that so-called press conference.
I am of the opinion that for anybody to say that I have absolute discretion, and that there will be no limits to my power, will be the very anti-thesis of constitutionalism. But I also think the move to impeach the CJI was really unfortunate. This was not a case of “misconduct”. As the situation stands today, the Chief Justice is the Master of Rolls, he can constitute Benches, pick even junior judges. And even if someone misuses this power, is that ‘misconduct’? The Constitution does not define misconduct, nor does it say that the CJI shall be the Master of Rolls. We have to look closely at this power. Questions of administrative discretion should be dealt with in a non-arbitrary, reasonable, rational way.
On the continuing tussle over the appointment of judges
On first principles of constitutionalism, the assertion by judges that whatever they say has to be accepted by the government, is not right. But all constitutional adjudication has a context. And the context is that the government had tried to influence judges, the executive was weak during the coalition era, and so the court got this power. My grievance with the court and the collegium is that having got this power, they did not exercise it in a transparent manner. That is why in the matter of the NJAC (National Judicial Appointments Commission, which was struck down by the Supreme Court in October 2015), there was near unanimity in the political class that judges should not have the power to appoint their own. Judges have invited this problem upon themselves. While judges are probably more independent than the government, and the public has at least some faith in them, the way the collegium has acted over the years has not been without controversy. Again, when the NJAC decision was made, I think the court should have read down the provision rather than striking it down altogether, because it created a confrontation, just as Golaknath had done nearly a half century ago. Having struck it down, they could have framed the Memorandum of Procedure (for appointment of judges to High Courts and the Supreme Court) themselves (instead of leaving it to the government which, two-and-a-half years on, continues to drag its feet).
On multireligious Benches for matters related to religion
(We should) Definitely not (have such Benches). I have written that a multireligious Bench (of a Sikh, a Hindu, a Parsi, a Muslim and a Christian judge) to hear the triple talaq case (August 22, 2017) was not needed. If anything, a woman judge should have been on the Bench. In fact, while I agree with the judgment overall, my problem is that there is hardly anything on gender justice in it. All minorities, all communities, all castes have full faith in our judges. A judge does not sit as a Muslim or a Christian judge.
On retired judges heading Commissions or becoming Governors
A judge taking up an assignment such as head of the National Human Rights Commission (NHRC) is different from a judge becoming a Governor. The NHRC hears matters against the state, and earlier CJIs have done a good job in the post. I would very much prefer judges to be given their last salary as pension, and to be kept out of panels other than, say, NHRC or Lokpal, where a judicial mind is needed. But I don’t think that one should become a Governor.