The last week was a mixed one for the ruling regime. The Supreme Court (SC) expressed constitutional disappointment at the lack of progress towards a Uniform Civil Code and goaded action towards fulfilment of Article 45 of the Constitution. But in the Sanjiv Rajendra Bhatt case, the SC refused to constitute an SIT in a situation that it found conflated party politics with citizen and judicial activism; in remanding Bhatt to stand criminal trial, it continued to issue “clean chits” to the prime minister and the president of the BJP for the Gujarat 2002 events. And yet, in the same week, an enriching 1,053 pages a 4:1 decision nullified the National Judicial Appointments Commission (NJAC) amendment and act on grounds that it violated the basic structure of the Constitution, thus invalidating the very first constitutional amendment and law sought by the current regime.
The three decisions, read together, establish one simple fact: Judicial review is a constitutional affair where decisions are not given for political but juridical reason. Some may be palatable to the regime or political class, others may not be. When the justices decide, it is according to the discipline and traditions of constitutional interpretation. They may sometimes be wrong, but when the SC so rules, it becomes binding law under Article 141. In the NJAC decision, they followed past precedents abundantly in arriving at the conclusion that the independence of the judiciary is an essential feature of the basic structure.
All distinguished justices agreed with Justice J. Chelameswar, in his lone learned dissent, that there was no “difference of opinion between the parties… regarding the proposition that existence of an independent judiciary is an essential requisite of a democratic republic”, nor any difference regarding the “proposition that an independent judiciary is one of the basic features of the Constitution of India”. The difference concerned only whether in enacting the NJAC, Parliament violated any essential feature or basic structure; Justice Chelameswar was not able to persuade his brethren that the NJAC was constitutionally valid. The majority opinion penned by Justice J.S. Khehar ruled that “consultation” in Articles 214, 217 and 222 always meant an independent judiciary and primacy of the chief justice of India in the process; and Justice Madan Lokur, in the long concurring opinion of about 300 pages, even went to elaborate its pre-constitutional virtue. If this is so, no Parliament may amend the constitution so as to take away, abrogate, or destroy this aspect of the basic structure. The Constitution may never be amended, as the majority ruled, to say that the “manner of selection and appointment” of judges is not an “integral component” of the “independence of the judiciary”.
The inclusion in the NJAC, as a member, of the law minister, and of the justice secretary as its convener, was declared as not “sustainable in law” and so was the membership of ill-defined “eminent persons”, although the court was generally in favour of the principle of public participation in civic and political affairs. Justice Kurian Joseph described “eminent persons” who denied any role in judicial appointment were now to “suddenly” assume “Kafkaesque proportions”, and acting in concert, they were capable of “paralys[ing] the appointment process, reducing the president and the chief justice of India to ciphers for reasons that might have nothing to do with the judicial potential or fitness and suitability of a person considered for appointment as a judge”. Such inclusion, moreover, offended the basic structure also because the state itself was the largest litigant and public confidence in courts and justices would erode, particularly in their impartiality, were the executive to have any direct role in judicial elevation and transfers. The NJAC “does not exist under law” observed the learned justice and pithily asked, “Why then write the horoscope of a stillborn child!”
But there was also an element of constitutional surprise not determined by contingencies of party or parliamentary politics but by the felt necessities of constitutional justicing. The constitutional surprise may not appeal to political or even public opinion in the short run, yet it becomes abiding law: The doctrine of basic structure furnishes one example, independence of the judiciary accentuating the primacy of the CJI is another. Surprise becomes astonishment when we realise that the justices seek to normatively constrain the political super majorities, especially when these threaten the constitutional scheme.
Although not directly agreeing with the salient criticism of the judicial collegium system articulated by Justice Chelameswar, Justice Joseph also said (in learned but the shortest concurring opinion) that the question whether the “institutional trusteeship has kept up the expectations of the framers of the Constitution” warrants “deep introspection”. And Justice Adarsh Kumar Goel urges that the grievances relate not to “the existence of the pre-existing system of appointment but about its functioning in practice”. This is a good move, as fairy tales and horror stories abound on executive – and judiciary-led appointments, told constantly to constitutionally sincere citizens who are denied all knowledge about how some co-citizens are appointed as judicial beings and many deserving others not.
Eminent petitioners and other senior lawyers are now busy preparing their suggestions in order to make the system transparent and accountable. Certainly, timely disclosures of names considered and those eventually appointed and greater deference to high courts will greatly increase both. The constitutional surprise stands enhanced by the fact that this post-decisional hearing will result in a decision binding on the CJI and the collegium itself.
Instead of going before the SC in adversarial mode, the government should have requested an advisory opinion (at the “consultation” with eminent jurists convened by the then law minister, Ravi Shankar Prasad, I specifically suggested this alternative, ‘Judges Bill: Govt in a tearing hurry’, The Indian Express, August 8, 2014). The government decided to perform some aggressive advocacy. It lost, but still has an opportunity to urge ways in which the collegium system may be progressively reformed.
One thing is clear: Short of the wholly undesirable total reversal of all sovereign precedents or the abolition altogether of constitutional courts, Parliament has to remain content with supremacy within the constitutionally anointed spheres. Legislative and executive powers are immense and adequate in combating impoverishment and promoting just development. The SC rarely invalidates a constitutional amendment and saves most enactments from the vice of unconstitutionality by the judicial technique of reading down. All said and done, the future of human justice and rights lies in mutual respect among co-governance institutions and not in the brute will of super-majoritarian executive power.
The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi