Opinion Upendra Baxi writes: The collegium system is law of the land; the idea of absolute parliamentary sovereignty is erroneous

Constitutional politics, which thrives on granting vast powers of supremacy to legislature and executive, also establishes a framework of limits. Justices, even as a rookie law person knows, are not interested in the outcomes of any specific litigation. The Constitution commands that the apex court generate principles which define thresholds of power because every institution is supreme within its own domain and no institution is sovereign in India. In contrast, political competition for power must always remain invested in the decisional outcomes.

The five-judge decision invalidated the 99th Constitutional Amendment (new Article 124A, 124B, and 124C) and the accompanying Act (the National Judicial Appointments Commission Act, 2015) because of the glaring violation of the basic structure doctrine on the constitutional rule of law and independence of the judiciary. The NJAC also empowered the Union Minister of Law and Justice and two eminent persons from civil society (one of the eminent persons to be nominated from SC/ST/OBC/minorities or women) — a majority in the commission — to veto a recommendation, thus cancelling judicial primacy.

Chief Justice J S Kehar, in a 500-page opinion, declared that it is “difficult to hold that the wisdom of appointment of judges can be shared with the political executive”. In India, the “civil society” is not “sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it insulated and independent from the other organs of governance,” he wrote. The Court also held that since the executive has “such a major stake, in most cases, coming before constitutional courts the participation of the Union Minister of Law and Justice …would be clearly questionable” since …the rules of natural justice” entail that the “adjudicator should not be biased”.

The Second Judges Case in 1993 characterised the appointment of judges as a “participatory… joint venture” which will enable “all the constitutional functionaries” to “transcend the concept of primacy between them”. Further, “…the …avowed apolitical commitment” and “the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments”. Contrary to heavy political propaganda, the Court does not prevent Parliament from bringing in a revised law or amendment, which it has not so far not done. The Court does not devalue the position of the Union Law Minister; it only invalidates the structural probability in the NJAC, which gives that office the power to forge a voting coalition that would depose judicial primacy.

In fact, the Union of India has accepted the judicial collegium. The terms of reference, reproduced in the Advisory Opinion in the Special Reference Case (1999), do not contest the collegium system but seek only the clarification on whether the plurality of justice should be limited to three. The apex court advised that its Collegium should comprise five justices, including the CJI, and it shall further consider recommendations from high court bodies on appointments and transfers.

The lack of accountability has been criticised by the justices themselves. Some small but progressive steps have been undertaken. Yet, much more needs to be done (such as more imaginative respect for pluralism and diversity in judicial appointments). But the general point I have often made is that any absolute transparency is unattainable when one must choose among many super-qualified persons. Perhaps, the best way is to attain greater procedural reasonableness: No qualified candidate should be excluded from consideration, and all must be treated equally. Any symptom of non-constitutional judicial despotism should be publicly monitored and held as a ground for judicial impeachment (the Supreme Court of Sri Lanka recently held the country’s past president and various ministers and officials personally liable for not acting in time on actionable intelligence to prevent the terrorist attacks on churches on Easter in 2019). Even so, we as citizens might never know how and why our justices are appointed or transferred — either in the collegium or executive system.

An erroneous view of absolute parliamentary sovereignty haunts the nation once again. The issue, however, is long settled: If there is any sovereignty it is sovereignty within the law and not beyond the law. This position has stood the test of time, and all major political parties have seen the wisdom in the rallies to “Save the Constitution”.

Mature political handling is now needed to avoid a situation like that in Israel when more than 80,000 people protested in Tel Aviv, Jerusalem, and Haifa on January 13 against the “new right-wing government’s plans to fundamentally overhaul the judicial system, accusing Prime Minister Benjamin Netanyahu of trying to weaken the country’s democratic institutions just weeks after returning to power”. The protest was organised by grass roots activists and backed by the leaders of Israel’s centrist and left-wing parties.

Judicious comity — not confrontation — across all democratic institutions is the best response. The Constitution of India decrees and deserves deep harmony. Constitutional brinkmanship among the apex institutions of co-governance must not be allowed to menace the Amrit Kaal, and the march to the centenary of the adoption of the Constitution.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi.