Addressing an audience on the occasion of Constitution Day on November 26, Chief Justice of India N V Ramana read out his views from what seemed to be a prepared text. The Constitution’s framers, he said, made accountability integral for the legislature and executive. However, he went on to claim, they deliberately decided to keep the judiciary on a “different pedestal”.
Why? It is because, he surmised, the framers trusted the competence of men and women who would “adorn” the bench in upholding the Constitution. The choice of words in the prepared text, problematic as they are, could have been overlooked had the overall tenor of his speech conveyed a different message. It didn’t. And that is clear from a point he went on to make at the event.
Expressing concern over the increasing attacks on the judiciary in the media, in particular social media, he asked that central agencies effectively deal with what appear to be sponsored, synchronised and malicious attacks. What the CJI was effectively saying is that governments which, as he said, are accountable, should create a safe environment so that judges who are on a different pedestal in regard to accountability, can adorn the bench fearlessly.
At the outset, it is useful to mention that judges are accountable under our Constitution because they can be removed in certain situations. Article 124(4) mentions the procedure to be followed in case of removal of a Supreme Court judge on the grounds of proved misbehaviour or incapacity. Article 217 follows the same for high court judges.
Indeed, while the members of the legislature and the executive, which is carved from the legislature, have to be elected by the voters every five years and, therefore, do face the risk of rejection, judges don’t go through the same voting process. Also, the courts not only have the powers to adjudicate legal disputes brought before it but even strike down laws passed by the legislature which go against the Constitution. Over the years, however, the Supreme Court has given itself powers in two critical areas which do not find any reference in the Constitution. Oddly, both these powers seem to serve one purpose — perpetuation of the “pedestal” adorned by Their Lordships.
First, in regard to the appointment of judges, the SC itself has diluted the plain meaning of the Constitution. A judge of the SC, as per Article 124(2), is appointed by the President after consultation with such of the SC and HC judges as the President may deem necessary. Instead, in practice, the judges are appointed through a collegium, a five-member body consisting of the CJI and four senior-most judges. “Consultation” in the Constitution really means “concurrence”. Therefore, the opinions given by the SC and HC judges as the President may deem necessary aren’t individual opinions, but institutional mandates. Who decided that? The SC itself in the famous Second Judges Case and Third Judges Case. The kings became the kingmakers.
Second, the Supreme Court has given itself the power to strike down not only laws but even amendments to the Constitution passed by an overwhelming majority of not only Parliament but a majority of state assemblies throughout India — a procedure mentioned explicitly in the Constitution. It was held that certain changes cannot be made to the Constitution due to the fact that it has a “basic structure” that cannot be altered. Who introduced this “basic structure” doctrine? Yet again, the Supreme Court.
When Parliament well as 20 states approved the NJAC — a constitutional amendment to replace the collegium system — the SC declared it unconstitutional. The primacy of judges in selecting other judges, the top court ruled, was a part of the Constitution’s “basic structure”. And because these two extra-constitutional powers haven’t faced a serious pushback so far — primarily because of restraint on the part of the legislature and executive to avoid a breakdown of the three pillars on which the edifice of the state stands — judges seem to have internalised the “My Lords” epithet, a tradition carried over from the unabashedly classist British era.
It is that internalisation which, it seems, found its way into CJI’s speech last week. The tenor all but revealed that, out of the three pillars, one pillar looks at itself as the most important. The Supreme Court is supreme, indeed. But with that great supremacy comes great responsibility — to be cognisant of the boundaries within which the supremacy lies. The CJI’s address does nothing to assure India of that.
This column first appeared in the print edition on December 2, 2021 under the title ‘No, your lordship’. Tanna is a lawyer